Allahabad High Court
Roop Narain And Others vs D.D.C.And Others on 22 July, 2020
HIGH COURT OF JUDICATURE AT ALLAHABAD At Residence Reserved A.F.R. Case :- WRIT - B No. - 25271 of 1988 Petitioner :- Roop Narain And Others Respondent :- D.D.C.And Others Counsel for Petitioner :- D.S.P.Singh,C.S.Garg,D.S. Mishra, Dhan Shyam Mishra, Sushma Devi Counsel for Respondent :- S.C.,Hari Kesh Singh,O.P. Srivastava, Ram Chandra, Ratnesh Kumar Srivastava Hon'ble J.J. Munir,J.
1. This writ petition arises from proceedings commenced on objections brought under Section 12 of the U.P. Consolidation of Holdings Act, 1953 (for short, ''the Act'). These objections, one filed by the petitioners and other by the second respondent, were determined variously by the Consolidation Authorities in the first instance, in appeal and in revision. The petitioners, who had succeeded in their claim to be mutated over the land in dispute, in place of the original chak holder, Smt. Dauli @ Daulati before the Consolidation Officer and the Settlement Officer of Consolidation, lost in revision before the Deputy Director of Consolidation, who found in favour of the second respondent, Chandrawali. That is what has brought the petitioners to this Court, assailing the order of the Deputy Director of Consolidation dated 12.12.1988, under Article 226 of the Constitution.
2. The facts giving rise to the dispute that have led to this writ petition, besides the course of proceedings before the Authorities below, require elucidation.
3. The property in dispute, of which details shall be given hereinafter, is a moiety of 1/3rd of the tenure of one Sudipal. Sudipal had three sons, who in turn had one son each. Of them, Mahadeo, who represents the branch of Hublal, died intestate leaving his widow, Smt. Dauli @ Daulati and two daughters, Smt. Pyari w/o Gulab and Smt. Dudha Devi w/o Chandrawali. As indicated above, Chandrawali is the second respondent to this writ petition. The following pedigree would facilitate understanding about the succession of tenure from Sudipal:
Sudipal Hublal Shyambaran Molai Mahadeo Shobhey Roop Narain Mst. Dauli @ Daulati
4. Now, a one-third moiety of the tenure held by Sudipal, was inherited by Smt. Dauli @ Daulati upon Mahadeo's decease. The two daughters of Mahadeo admittedly did not inherit any share, going by the provisions of Section 171 of the U.P. Z.A. & L.R. Act, as these stood at the relevant time. The widow, Smt. Dauli @ Daulati inherited her husband's right as a bhumidhar with all powers of disposition inter vivos, but if she were to die intestate, the land would revert to the branches of her husband's brothers, that is to say, Shyambaran and Molai. Roop Narain, petitioner no.1, since deceased and now represented by his LRs and Shobhey, petitioner no.2, also deceased and now represented by his LRs, who are sons of Molai and Shyambaran, respectively, would take by succession the share of Smt. Dauli @ Daulati. It is the failure of the male line in the branch of Hublal that has apparently given rise to the present dispute.
5. The dispute between parties precipitated during consolidation operations. The land in dispute comprises three chaks located in three different villages, to wit: Chak No.319, situate at village Paschimpur, Chak No.163, situate at village Amilaun and Chak No.107, situate at village Dhananjaypur, all falling in the district of Varanasi. The land above described is hereinafter referred to as ''the land in dispute'.
6. Objections were filed under Section 12 of the Act by the petitioners, Roop Narain s/o Molai and Shobhey s/o Shyambaran before the Assistant Consolidation Officer saying that Smt. Dauli @ Daulati had died intestate on 12.04.1978. The petitioners, being her heirs at law, are entitled to mutation over the land in dispute. The Assistant Consolidation Officer, by his order dated 01.08.1978, mutated the names of the petitioners in place of Smt. Dauli @ Daulati, recording them as her heirs. It is the second respondent's case that Smt. Dauli @ Daulati was alive when all this happened. She filed an appeal to the Settlement Officer of Consolidation, East, Varanasi from the order of the Assistant Consolidation Officer dated 01.08.1978, claiming that the order was without basis as she was alive. Smt. Dauli is said to have filed an affidavit in support of the appeal, swearing therein that she is Dauli @ Daulati, widow of the late Hublal and a resident of village Dhananjaypur, district Varanasi. It was also said in the affidavit that she is alive and not dead. The petitioners challenged the fact that this appeal was filed by Smt. Dauli @ Daulati. Their stand in the appeal was that the appellant, Dauli was an imposter. The appeal aforesaid, that was registered on the file of the Settlement Officer of Consolidation, East, Varanasi as Appeal No. 8, came to be allowed by a judgment and order dated 27.11.1978 with a remit of the matter to the Consolidation Officer (Final Records), Varanasi, to hear and determine the objections afresh, after opportunity to all parties. The issue about Smt. Dauli @ Daulati being an imposter was not decided by the Settlement Officer of Consolidation, who left it open to be determined by the Consolidation Officer, on a trial of the matter along with other issues.
7. Consequent upon remand, two objections were registered on the file of the Consolidation Officer, under Section 12 of the Act. Case No.59 was registered at the instance of respondent no.2, Chandrawali, whereas Case No.60 represented the original objections brought by the petitioners, Roop Narain and Shobhey. According to the second respondent, Smt. Dauli @ Daulati died on 14.11.1979, pending decision of the remanded proceedings by the Consolidation Officer. But, much transpired before Smt. Dauli is acknowledged to have died by the second respondent.
8. It also appears from the record that post-remand, the objections were decided vide an order dated 02.05.1979 in favour of Chandrawali, the second respondent, on the basis of the sale deed from Smt. Dauli, but the petitioners claimed that order to be ex parte. The petitioners, therefore, filed a restoration application on 02.05.1979, which was allowed by an order dated 23rd August, 1979, restoring the objections to their original file and number. The objections were thereafter consolidated, heard together and determined vide judgment and order dated 25.01.1984 passed by the Consolidation Officer.
9. It is the second respondent's case that Smt. Dauli did not die on 12.04.1978, as claimed by the petitioners. She was alive until much later. Dauli sought permission from the Settlement Officer of Consolidation, East, Varanasi to sell the property in dispute. The Settlement Officer of Consolidation granted this permission vide an order dated 17.07.1978, under Section 5(ii) of the Act. Consequent upon grant of permission to transfer, Smt. Dauli is said to have executed the sale deed dated 18.07.1979, conveying the property in dispute in favour of the second respondent, who is admittedly Dauli's son-in-law. Smt. Dauli filed an affidavit in case Nos.59 and 60 before the Consolidation Officer, stating that she had executed a sale deed dated 18.07.1979 in favour of Chandrawali, respondent no.2 and that she acknowledged the execution and registration of the said sale deed. This affidavit was filed by Smt. Dauli on 15.06.1979. Smt. Dauli, according to the second respondent, passed away on 14.11.1979, while case Nos.59 and 60 were still pending before the Consolidation Officer. She was cremated, again according to the second respondent, at the Manikarnika Ghat, Varanasi.
10. It must be remarked here that the parties are seriously at issue about the date of Smt. Dauli's death. While according to the petitioners she passed away on 12.04.1978, the stand of the second respondent is that she died on 14.11.1979. This variable stand of the parties about the date of Smt. Dauli's death, was in accordance with their respective cases, set up to assert title to the property in dispute. In case, it were proved that Smt. Dauli died on 12.04.1978 intestate, the property in dispute would devolve upon the petitioners as the heirs of the last male tenure holder. It would also establish the petitioners' case that the sale deed dated 18.07.1979, executed by Smt. Dauli, in favour of the second respondent was a bogus and a sham document secured through the hands of an imposter. On the other hand, if the date of Smt. Dauli's death were established to be 14.11.1979, the second respondent would have a strong claim about title to the property in dispute, based on a registered conveyance from Smt. Dauli, executed during her lifetime.
11. In the aforesaid perspective, the parties went to trial of their objections on the following issues (translated into English from Hindi vernacular):
"(i) Whether Smt. Dauli @ Daulati died on 12.04.1978 and Roop Narain and others are her heirs?
(ii) Whether Chandrawali is bhumidhar in possession of the property in dispute on the basis of sale deed dated 18.07.1979?
(iii) Whether the sale deed dated 18.07.1979 is forged and the sale deed was executed after Dauli's death?"
12. All the three issues were dealt with together by the Consolidation Officer, who held on the crucial fact about date of Smt. Dauli's death that she passed away on 12.04.1978. It was consequently held that the petitioners were her heirs in accordance with the provisions of Section 171 of the U.P. Z.A. & L.R. Act. A fortiori it was held that the sale deed dated 18.07.1979, was a forged document, executed by some imposter after Dauli's death. On the basis of these conclusions, by his order dated 25.01.1984, the Consolidation Officer accepted the objections of the petitioners, ordering them to be mutated over the land in dispute. Chandrawali's objections were ordered to be consigned to the record.
13. The second respondent appealed the decision of the Consolidation Officer, last mentioned, to the Settlement Officer of Consolidation, where his appeal was registered as Appeal No.130/1971. The Settlement Officer of Consolidation by his judgment and order dated 14.08.1985, dismissed the second respondent's appeal and affirmed the Consolidation Officer's order of January the 25th 1984.
14. Aggrieved, the second respondent carried a revision to the Deputy Director of Consolidation, under Section 48(1) of the Act. The revision aforesaid, that was numbered as Revision No.413/ 849 on the file of the Deputy Director of Consolidation, Varanasi, came up for determination on 12.12.1988. The Deputy Director of Consolidation by his judgment and order dated 12.12.1988, allowed the revision, set aside the orders, last mentioned, passed by the Consolidation Officer and the Settlement Officer of Consolidation and reversing those orders allowed the second respondent's objections. He has ordered the name of the second respondent to be mutated over the land in dispute, on the basis of the sale deed from Smt. Dauli, ordering the petitioners' name, earlier mutated by right of succession, to be expunged. The petitioners now lay challenge to the order dated 12.12.1988, passed by the Deputy Director of Consolidation in revision, last mentioned, which shall hereinafter be referred to as ''the impugned order'.
15. Heard Sri Bipin Kumar Singh, learned Advocate holding brief of Sri D.S.P. Singh, learned Counsel for the petitioners and Sri Hari Kesh Singh, learned Counsel appearing for respondent no.2.
16. The central issue which the Authorities below have determined, divergently though, is whether Smt. Dauli died on 12.04.1978 or 14.11.1979. The Consolidation Officer has proceeded to accept the petitioners' case about the date of Smt. Dauli's death, based on a certified copy of a document, described as a Register of Deaths, 1978 for Village Dhananjaypur. The certified copy of the said Register, filed on behalf of the petitioners, shows the date of death of Smt. Dauli to be 12.04.1978 and is noted by the Consolidation Officer to be entered at serial no.6 of the document. The Consolidation Officer has remarked that the Register of Deaths is a public document, as it is maintained under Section 109- A of the Uttar Pradesh Panchayat Raj Act, 1947. He has further remarked that there is no reason to disbelieve this document. The Consolidation Officer has also taken note of the oral evidence of Roop Narain, petitioner no.1, who testified as a witness before him. He has said in his testimony that Smt. Dauli died on 12.04.1978. Also taken note of, is the evidence of a certain Dev Raj, said to be the brother's son of the late Smt. Dauli. He too has testified to the fact that Smt. Dauli died on 12.04.1978. The Consolidation Officer while examining the second respondent's case about Smt. Dauli's death being 14.11.1979 has considered the extract of the Death Register, Manikarnika Ghat, Nagar Palika, Varanasi, where her death is shown to be 14.11.1979; the time being 9 p.m.
17. In evaluating the worth of the last mentioned document, the Consolidation Officer has remarked that the parties are ad idem about the fact that Smt. Dauli was a native of village Dhananjaypur and that she died there. He has further remarked that if Smt. Dauli died on 14.11.1979 at village Dhananjaypur, there ought to be an entry in the Gaon Sabha Register (about deaths) relative to the said date. The Consolidation Officer has then gone on to analyse the testimony of witnesses appearing for the petitioners. He has considered the testimony of one Baliram, about whom the Consolidation Officer says that the witness acknowledges the fact that Roop Narain and Smt. Dauli have a familial connection, but he has not been able to indicate the precise relationship of Sakhran and Smt. Dauli. It is then noticed by the Consolidation Officer that Sakhran has not entered the witness box. From this evidence, the Consolidation Officer has concluded that Sakhran is not Smt. Dauli's brother-in-law (Dewar). This finding serves as a deductive link to disbelieve the petitioners' case about Smt. Dauli's death on 14.11.1979, where it is said that her funeral pyre was lit by her brother-in-law (Dewar), Sakhran at the Manikarnika Ghat, Varanasi.
18. About that part of the second respondent's case that against the permission secured by Smt. Dauli under Section 5-C of the Act to transfer the land in dispute, the petitioners did not take any steps, it is remarked by the Consolidation Officer that Smt. Dauli never appeared in any Court. As such, the possibility cannot be ruled out that someone else, impostering as Dauli, moved that application. The Consolidation Officer has then said that the necessity shown in the sale deed for Smt. Dauli to execute a sale deed of the land in dispute is to raise funds to meet the expenses of her pilgrimage and to liquidate debt. The Consolidation Officer has found it to be a contradiction that the witnesses, Banshi and Harinath have said that no money was paid in their presence to Smt. Dauli. The Consolidation Officer has then proceeded to remark that there is no cause to disbelieve the certified copy of the Register of Deaths of Village Dhananjaypur, a fact mentioned hereinbefore.
19. It is also remarked that Harinath, a Special Power of Attorney Holder for Chandrawali and another witness, Banshi, are not natives of the parties' village. It has then been noticed by the Consolidation Officer that so far as Baliram is concerned, there is litigation over land pending between Roop Narain and Baliram, a fact that renders the former inimical to Roop Narain. In the assessment of the Consolidation Officer, Baliram is not an independent witness.
20. By contrast, the Consolidation Officer has held that the petitioners' witness, Dev Raj is a nephew to Smt. Dauli, being her brother's son, whereas Roopan, the other witness for the petitioners, is the Village Pradhan. These witnesses have been held to be reliable. Thus, relying on the certified copy of the extract of the Register of Deaths in question, the evidence of Roopan and Dev Raj, besides other circumstances noticed, the Consolidation Officer has held the date of Smt. Dauli's death to be 12.04.1978. Consequently, the sale deed has been adjudged void and one executed by an imposter, after Smt. Dauli's decease.
21. The Settlement Officer of Consolidation, who heard the appeal, also preferred the certified copy of the Register of Deaths, filed on behalf of the petitioners, over the copy of the Register of Deaths from the Manikarnika Ghat, Varanasi, relied upon by the second respondent. The Appellate Authority found the testimony of witnesses, Roop Narain, petitioner no.1 and Dev Raj, a son of Smt. Dauli's brother, to be relevant, cogent and reliable. The Appellate Authority has remarked that Smt. Dauli did not testify before the Authority of first instance. It has also been remarked that the Assistant Settlement Officer of Consolidation, while deciding Smt. Dauli's Appeal from the order of mutation passed by the Assistant Consolidation Officer, did not go into the question whether Smt. Dauli is alive or it was an imposter who had come forward with the Appeal. This question was left to be determined at the hearing of objections under Section 12 of the Act. It has, therefore, been held by the Appellate Authority that prior to the current proceedings, it has never been held for a fact whether the Appeal from the mutation order, preferred by Smt. Dauli, was indeed her Appeal or an imposter's Appeal. The issue about Smt. Dauli being herself or an imposter was not held concluded in terms of the earlier order, passed in Appeal no.8 at the instance of Smt. Dauli, but was found to be a question open to decision in the present proceedings.
22. On the perspective of evidence hereinbefore detailed, the Appellate Authority concurred with the Authority of first instance to find in favour of the petitioners that Smt. Dauli died on 12.04.1978. The sale deed of 1979 urged by the second respondent as the basis of his right was, therefore, held to be void and one executed by an imposter.
23. The Revisional Authority, the Deputy Director of Consolidation disagreed with the two Authorities below. The Revisional Authority held that the certified copy of the Register of Deaths shows that the document is signed by Roopan Pradhan and Girija, Up-Pradhan. It has been remarked by the Deputy Director of Consolidation that the Pradhan in his testimony has said that entries in the Register of Deaths are required to be made by the Panchayat Secretary and that the said Register remains in his custody. It has been noticed that the certified copy is signed by the Pradhan and the Up-Pradhan alone and does not bear the signatures of the Secretary. The Revisional Authority has held the document to be of no worth, in the absence of the signatures of the Panchayat Secretary thereon. It has been held also that the document appears to be a certificate issued by the Pradhan, privately. The Revisional Authority has taken a very different view of the documentary and oral evidence, as also the other circumstances on record to hold that the certificate about Smt. Dauli's death issued by the Nagar Palika owned Ghat is reliable, where her date of death recorded as 14.11.1979 is correct. The sale deed too has been found to be valid, entitling the second respondent to be recorded as bhumidhar over the land in dispute.
24. It has been argued by Sri Bipin Kumar Singh, learned Counsel for the petitioners that the Deputy Director of Consolidation has committed a manifest error of law in holding that the remand order dated 27.11.1978, passed in Appeal no.8 from the mutation order of the Assistant Consolidation Officer, was binding on the second respondent since it was not challenged and became final between parties. It is next argued that the date of death mentioned in the Register of Burning Ghat, relied upon by the Revisional Authority, would not prevail over the Register of Deaths or the Family Register maintained under the Uttar Pradesh Panchayat Raj (Maintenance of Family Registers) Rules, 1970. It is pointed out by the learned Counsel that these Rules have been framed by the Government in exercise of powers under Section 110(vii) of the Uttar Pradesh Panchayat Raj Act.
25. It is also argued that the entry in the record of the Burning Ghat is not a reliable document, intrinsically. Moreover, it was not proved by any oral evidence also. It is also urged that the second respondent did not appear before any of the Authorities below, including the Authority of first instance. Rather, a Power of Attorney Holder on his behalf, one Hari Nath hailing from a different village, to wit, Karimuddinpur testified before the Authority of first instance. According to the learned Counsel no weight can be attached to the oral evidence of Hari Nath, who has spoken hearsay. In support of his contention on this score, the learned Counsel for the petitioners has reposed faith in the decision of this Court in Krishnapal and others vs. State of U.P. through District Magistrate, Banda and othes, 2010 (110) RD 210, where it is held in paragraph 15 of the report thus:
"16. The second issue is with regard to the date of death of Sadashiv recorded as 25.11.1975 in the family register. A family register is a public record in terms of the Evidence Act inasmuch as the same is prepared under the statutory provisions of Section 15 (xxiii)(e) of U.P. Panchayat Raj Act read with Rule 2, Rule 67, Rule 142 to 144 of the U.P. Panchayat Raj Rules, 1947. The family register is prepared under the Uttar Pradesh Panchayat Raj (Maintenance of Family Registers) Rules, 1970. It is to be noted that Form (A) also records the date of death of a family member. There is yet another Form namely Form (D) which is for registering the date of birth and death. Both these Forms, therefore, record the date of death of a person and they are prescribed under the Rules. Needless to say that the rules are framed by the State Government and the registers prescribed for particular purposes are notified under the rules. Reference may be had to Section 110 (vii) of the 1947 Act for the said purpose."
26. It is next submitted that Sakhran, who is said to have lit the funeral pyre of Smt. Dauli on 14.11.1979, has misdescribed himself to be her brother-in-law (Dewar). He is not related at all to Smt. Dauli. According to the learned Counsel for the petitioners, the Revisional Authority has conjectured to record a finding about Sakhran, that reference to him as ''Dewar' is one going by a common practice in villages to refer to friends and co-sharers as relatives. It is also argued that the Deputy Director of Consolidation has held in error that the petitioners having not sued for cancellation of the sale deed cannot assail it. He submits that the document being void requires no suit for cancellation and it is within the competence of the Consolidation Authorities to determine its validity.
27. Sri Hari Kesh Singh, learned Counsel for the second respondent on the other hand submits that a heavy burden lay upon the petitioners to prove their allegations, who seek to assail a registered conveyance on the ground of fraud by impersonification. This burden, according to the learned Counsel for the second respondent, has not at all been discharged. In support of his contention regarding a presumption in favour of the validity of a registered document, Sri Hari Kesh Singh has placed reliance on the decision of the Supreme Court in Prem Singh and others vs. Birbal and others, (2006) 5 SCC 353. He has called attention of the Court to paragraph 27 of the report in Prem Singh (supra), where it is held:
"27. There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption. In the instant case, Respondent 1 has not been able to rebut the said presumption."
28. It is next submitted by Sri Hari Kesh Singh, learned Counsel for the second respondent that the Deputy Director of Consolidation has ample authority to disturb those findings of facts recorded by the Authorities below where these are perverse in the sense that they go against the weight of evidence on record. He has relied upon the decision of their Lordships of the Supreme Court in Sheo Nand and others vs. Deputy Director of Consolidation, Allahabad and others, (2000) 3 SCC 103. He has drawn the attention of the Court to paragraph 21 of the report in Sheo Nand (supra), where it is held:
"21. Normally, the Deputy Director, in exercise of his powers, is not expected to disturb the findings of fact recorded concurrently by the Consolidation Officer and the Settlement Officer (Consolidation), but where the findings are perverse, in the sense that they are not supported by the evidence brought on record by the parties or that they are against the weight of evidence, it would be the duty of the Deputy Director to scrutinise the whole case again so as to determine the correctness, legality or propriety of the orders passed by the authorities subordinate to him. In a case, like the present, where the entries in the revenue records are fictitious or forged or they were recorded in contravention of the statutory provisions contained in the U.P. Land Records Manual or other allied statutory provisions, the Deputy Director would have full power under Section 48 to reappraise or re-evaluate the evidence-on-record so as to finally determine the rights of the parties by excluding forged and fictitious revenue entries or entries not made in accordance with law."
29. Learned Counsel for the second respondent submits that there is no such manifest illegality or perversity about the Revisional Authority's approach, which may require interference by this Court.
30. It must be remarked here that this Court does not sit in Appeal over the judgment of the Deputy Director of Consolidation. The scope of interference is reputed and limited to a secondary review. If it is proven that the judgment impugned suffers from an error apparent or it is manifestly illegal or proceeds to record conclusions on the basis of irrelevant evidence or ignores from consideration relevant evidence, or still more, draws one or more inferences from evidence decisive to the result that can be termed as perverse, this Court is entitled to interfere. It is equally true, that this Court sitting in its writ jurisdiction cannot convert itself to a Court of First Appeal and arrogate those functions to itself. In the opinion of this Court, one legitimate score and perhaps the only one, on the foot of which the impugned judgment could be successfully assailed, is the document which is a certified copy of the Register of Deaths, 1978 relating to village Dhananjaypur being excluded from consideration by the Deputy Director of Consolidation on ground that it does not qualify as a valid Register, maintained under the statute. The Deputy Director of Consolidation has excluded the certificate from consideration because it does not bear the signatures of the Panchayat Secretary. The document which is described as the Register of Deaths, 1978 relating to village Dhananjaypur, is in fact a Register maintained under statutory Rules. The relevant Rules are the Uttar Pradesh Panchayat Raj (Maintenance of Family Registers) Rules, 1970 (for short, the Rules). These Rules have been framed by the State Government in exercise of powers under Section 110 of the Uttar Pradesh Panchayat Raj Act, 1947.
31. To this Court, it appears that the document referred to as the Register of Death, 1978 is in fact a Family Register, maintained in Form-A appended to the Rules. The further reference to a Form-D, regarding dates of births and deaths, maintained under these Rules, referred to in Krishnapal (supra) has not been shown to this Court, on a production of the Rules. The Rules have just one Register in Form-A, called a Family Register. Be it as it may, the Family Register is also required to carry an entry about the date of death of the members of a family, who are natives of a village. This Court in Krishnapal (supra) has accorded much sanctity and weight to an entry in the Family Register, because it is maintained under the Rules framed under the U.P. Panchayat Raj Act. There can be no cavil about that proposition. What is important is that the entries in the Family Register are to be made by the Secretary of the Gram Panchayat, in accordance with Rule 4 of the Rules. Rule 4 reads thus:
"4. Quarterly entries in the family register.- At the beginning of each quarter commencing from April in each year, the Secretary of a Gram Sabha shall make necessary changes in the family register consequent upon births and deaths, if any, occurring in the previous quarter in each family. Such changes shall be laid before the next meeting of the Gram Panchayat for information."
32. The Deputy Director of Consolidation has recorded in the impugned order that the certified copy of the relevant extract of the Family Register shows that it has been signed by Roopan, Pradhan and Girija, Up-Pradhan, and that it nowhere bears the signature of the Panchayat Secretary. This being so, the Family Register, of which a certified copy of the extract has been filed relating to Smt. Dauli, does not conform to the requirement of Rule 4 of the Rules. It cannot be, therefore, characterized as a document maintained under the Rules. Rather, it has to be disregarded as a document that does not carry the force of a Family Register, maintained under the Rules. In taking the view that the Deputy Director of Consolidation has done about the Family Register, this Court thinks that no error has been committed by excluding the said document from consideration. It was emphasized at some stage, during the most subtle facets of his submissions about the validity of the Family Register, by Sri Bipin Kumar Singh, that the finding of the Deputy Director of Consolidation is not very clear about the absence of the Secretary's signatures on the document. He urged that it appears that the Deputy Director of Consolidation is talking about the signatures on the certified copy and not the original. To the understanding of this Court, the finding is clear that the Family Register does not bear the Secretary's signature. Even if, there were some truth to this fine distinction, it was for the petitioners to cause the Family Register to be summoned at the relevant time before the Deputy Director of Consolidation, for a verification of this fact. But, they did not do so. Now, it is not open to the petitioners to canvass the said plea on the possible state of the original Family Register, once that document was not before the Deputy Director of Consolidation. Therefore, the Family Register in the considered opinion of this Court, must be held to be rightly excluded by the Deputy Director of Consolidation. It must also be remarked that this was an aspect which the two Authorities below did not at all advert to. The Deputy Director of Consolidation was, therefore, justified in taking the view that he did and no exception can be taken to it.
33. The Deputy Director of Consolidation has disbelieved the Family Register, for an added reason. He has recorded a finding that the petitioners, Roop Narain and Shobhey, were employed on the Cane Crusher of Roopan Pradhan, which makes him an interested witness. He has analysed parole evidence of witnesses, appreciating it in a way that is plausible. It is not for this Court to re-appreciate oral evidence of witnesses done by the Deputy Director of Consolidation, unless his conclusions be demonstrably perverse. In the considered opinion of this Court, his conclusions about the oral evidence are certainly not perverse. Rather, these are quite possible and plausible. The Deputy Director of Consolidation has believed the Cremation/ Death receipt from the Manikarnika Ghat, Varanasi, which shows the date of death of Smt. Dauli to be 14.11.1979. He has also analysed why in that receipt, Sakharan has been described as Smt. Dauli's brother-in-law (Dewar). The reason that has been assigned by the Deputy Director of Consolidation appears to be based on sound logic. He has taken notice of the practice in villages of this part of the country, of loosely referring to other natives close to the family by identifying relations, such as Dewar, even though stricto sensu they are not related. It is not for this Court to re-appreciate these niceties of evidence which the Deputy Director of Consolidation has reasonably well done.
34. There is a remark by the Deputy Director of Consolidation that if Smt. Dauli were dead, no order could have been passed on her Appeal, that was rendered by the Settlement Officer of Consolidation, where she challenged the earliest order of mutation in favour of the petitioners. The Deputy Director has reasoned that if Smt. Dauli was dead, no order could have been made on her Appeal. This reasoning does not appear to be correct, because the order of the Settlement Officer of Consolidation, dated 27.11.1978 leaves the question open about the date of Smt. Dauli's death, and a fortiori, the question, whether the person filing the Appeal was Smt. Dauli or someone else. The further remark of the Deputy Director that since this order was not challenged in Revision, it is effective inter partes, is also not correct. The issue about Smt. Dauli's death and the consequential validity of the sale deed have to be decided in the present proceedings, arising from objections under Section 12 of the Act. But, these remarks do not go to the root of the matter, because the Deputy Director has then said something more fundamental about the issue. He has said that Smt. Dauli took permission of the Settlement Officer of Consolidation to transfer the land in dispute, and, thereafter, executed a sale deed in favour of the second respondent. She filed an affidavit in Appeal no.8 from the order of mutation, where her thumb impression is there and also on the Vakalatnama. In the said affidavit, Smt. Dauli said that she is not dead, but alive. According to the Deputy Director of Consolidation, burden therefore, lay upon the petitioners to take steps to verify and prove that Smt. Dauli, who had appealed the mutation order and filed an affidavit, was in fact an imposter. It is also remarked by the Deputy Director that merely by dubbing someone as an imposter cannot prove that person to be, in fact, an imposter. It is also noticed by the Deputy Director that post-remand, in Appeal from the mutation order, Smt. Dauli filed her affidavit on 15.06.1979 affirming the fact of executing the sale deed in favour of respondent no.2.
35. It is trite to say that one who alleges fraud, must prove it. An allegation that a registered document has been executed by an imposter, if true, is fraud of the worst kind. This allegation against a registered document, about which there is a presumption of genuineness, cannot be made lightly. It is a very heavy burden to discharge. Impeaching a registered conveyance on the ground of fraud requires proof by the criminal standard; not just by preponderance of probability.
36. In this connection, reference may be made to the decision of the Supreme Court in Union of India (UOI) vs. M/s. Chaturbhai M. Patel & Co., (1976) 1 SCC 747. It has been held in UOI vs. M/s. Chaturbhai M. Patel & Co. (supra) thus:
"7. The High Court has carefully considered the various circumstances relied upon by the appellant and has held that they are not at all conclusive to prove the case of fraud. It is well settled that fraud like any other charge of a criminal offence whether made in civil or criminal proceedings, must be established beyond reasonable doubt: per Lord Atkin in A.L.N. Narayanan Chettyar v. Official Assignee, High Court, Rangoon [AIR 1941 PC 93 : 196 IC 404] . However suspicious may be the circumstances, however strange the coincidences, and however grave the doubt, suspicion alone can never tale the place of proof. In our normal life we are sometimes faced with unexplained phenomenon and strange coincidences, for, as it is said truth is stranger than fiction. In these circumstances, therefore, after going through the judgment of the High Court we are satisfied that the appellant has not been able to make out a case of fraud as found by the High Court. As such the High Court was fully justified in negativing the plea of fraud and in decreeing the suit of the plaintiff."
37. Again, the question as to burden of proof about the plea that a sale deed was liable to be cancelled on ground that it was secured by putting forward an imposter, fell for consideration of this Court in Iqbal Ahmad vs. Naimul, 2004(3) AWC 1974 (LB). It was held by K. S. Rakhra, J.:
"9. So far as the plaintiff's averment that the sale deed was liable to be cancelled on the ground that it was obtained by putting forward some imposter in place of the plaintiff No. 1, here too burden of proof lay on the plaintiff and not on the defendant. The defendant was not asking for any relief and therefore, he was not under any obligation to prove the execution of the sale deed or to produce the original record before the Court. The plaintiff No. 1 or any of the witness could have been examined to prove that no such sale deed was executed and even necessary record could have been summoned from the sub-registrar's office for comparison of the thumb impression of plaintiff No. 1 with the thumb impression of the executor of the sale deed in question available in the sub-registrar's office. Had any such evidence been led by the plaintiff in support of their case, the burden would have shifted on the defendant. In the absence of any such evidence on record, issue could not be decided in favour of the plaintiff by drawing adverse inference on the ground that the defendant had not produced the original sale deed as desired by the plaintiff in the case."
38. The present case arises from objections under Section 12 of the Act, where the position of the petitioners, who assail the validity of the registered sale deed dated 18.07.1979, executed by Smt. Dauli in favour of the second respondent, is that of a plaintiff in a suit for cancellation on ground that the document is void, as one executed by an imposter. The petitioners had a wealth of opportunity to demonstrate that the second respondent's vendor was an imposter. They could do so in proceedings of Appeal no.8, decided by the Settlement Officer of Consolidation, from the order of mutation, earliest made in favour of the petitioners, or they could do so also at the pre-hearing stage of the objections under Section 12 of the Act. In both these proceedings, Smt. Dauli, who is castigated as an imposter by the petitioners, had filed her affidavit that she was Dauli and was alive. She had put her thumb impression and/ or signature on the affidavit or the Vakalatnama. At that stage, she could be summoned and cross-examined with reference to her allegations in the affidavit filed. This was not done by the petitioners. It is true that Smt. Dauli did not appear before any of the Authorities, but then she was never summoned by the petitioners. It was the petitioners' burden to secure the presence of Smt. Dauli and prove by the best evidence, then forthcoming, that she was an imposter. Nothing was done to this effect by the petitioners. The burden which, therefore, lies on a person who assails a registered conveyance as one executed by an imposter, has not been discharged by the petitioners, in the opinion of this Court. The burden which the petitioners had to discharge on a plea of this kind was required to be proved beyond reasonable doubt as held in Union of India (UOI) vs. M/s. Chaturbhai M. Patel & Co. (supra). To the understanding of this Court, therefore, the petitioners have miserably failed to discharge their burden on this score. The impugned order passed by the Deputy Director of Consolidation cannot, therefore, be faulted.
39. In addition, it may be acknowledged that the jurisdiction of the Deputy Director of Consolidation to decide both questions of fact and law is very wide. It was hedged in with some limitations prior to the amendment made to Section 48 of the Act, introduced vide U.P. Act no.3 of 2002, in the form of Explanation (3). Under the unamended law also, their Lordships of the Supreme Court approved the principle that where the findings are perverse or not supported by evidence, it would be the duty of the Deputy Director to examine the entire case. This was held in Sheo Nand (supra), to which allusion has been made above. Now under the amended provisions of Section 48, very wide powers have been conferred on the Deputy Director to decide all questions of fact and law recorded by any subordinate Authority. He has also been conferred with the power to appreciate any oral or documentary evidence. Indeed, the enlarged powers under Section 48, conferred on the Deputy Director, vide U.P. Act no.3 of 2002, retrospectively w.e.f. November 10, 1980, make for a most non-conventional kind of revisional jurisdiction. But, the statute ordains it to be so. It is the duty of this Court to give full effect to the amended provisions of Section 48, read with Explanation (3). The amended provisions of Section 48 (as amended vide U.P. Act no.3 of 2002) read:
"In Section 48 of the principal Act, after explanation (2) the following explanation shall be inserted, namely:--
"Explanation (3).--The power under this section to examine the correctness, legality or propriety of any order includes the power to examine any finding, whether of fact or law, recorded by any subordinate authority, and also includes the power to re-appreciate any oral or documentary evidence."."
40. In view of the wide amplitude of powers exercised by the Deputy Director of Consolidation, no exception can be taken to the findings recorded by him on a plausible evaluation of the evidence on record - both documentary and oral.
41. In view of what has been held above, this Court finds no force in this writ petition. It fails and is, accordingly, dismissed.
42. All interim orders made are hereby vacated and all pending interim relief applications stand rejected.
43. There shall be no order as to costs.
Order Date :- 22.7.2020 BKM/ Anoop