# Om Prakash and others v. State of U.P. and others

- **Citation:** (2011) 2 ILRA 984
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-08-03
- **Case number:** Civil Misc. Writ Petition No. 43472 of 2011
- **Bench:** A.P. Sahi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/om-prakash-and-others-v-state-of-u-p-and-others-42007
- **Pages:** 4

## Headnote

Indian Evidence Act, 1872-Section-68presumption of genuineness of Regd.
Will-alleged to be executed on the same
dated of death of execution-itself creates
serious doubts-it is profounder to prove
beyond
reasonable
doubt-even
the
opposite parties lost in civil court itself
creates
serious
doubts
except
observation of suspicious nothing can be
presumed.

Held: Para 11

The contesting respondent no. 5 may
have lost the battle before the civil court
but the present petitioners who were the
defendants
have
also
not
gained
anything out of the said proceedings
except for an observation that the will
was suspicious.
Case law discussed:
2009 (107) RD 372; 2004 (96) RD 98; 2004
(96) RD 656
2 All] Om Prakash and others V. State of U.P. and others

985

## Text

984 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

productive, efficient and economical.
Having regard to the financial aspects the
Central Government, State Government
and their instrumentalities have right to
engage daily wagers on the agreed wages,
on contractual basis, adhoc and temporary
basis and there is no prohibition in the
Constitution or under any law of the land.
However, their appointment should be in
accordance to law.

In view of the above discussions, I
hold that :

(i) that Rules 2001 for regularisation
or
any
other
Rule
contemplating
regularisation is subject to Articles 14 and
16 of the Constitution of India and those
daily wagers, adhoc/temporary appointed
persons,
who
have
been
appointed
without following the proper procedure,
their appointments are per se illegal and
they have no right of regularisation.

(ii) While making regularisation,
conditions of Rules must be strictly
followed. Findings in respect of Rules
4(a) and (b) of the Rules 2001 be
specifically recorded in each individual
case.

(iii) Claim of regularisation cannot
be
denied,
merely
because
person
concerned is getting the minimum of pay
scale.

(iv)The State Government and its
instrumentalities are directed to follow the
above principle of law in case of
appointment and regularisation strictly.

13. With the aforesaid observations,
the writ petition is disposed of. The
authority
concerned
is
directed
to
consider the case of the regularization of
the petitioners in accordance to Rules, in
the light of the observation made above.

14. Let a copy of the order be
provided to the learned Chief Standing
Counsel, U.P. for necessary action.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.08.2011

BEFORE
THE HON'BLE A.P. SAHI,J.

Civil Misc. Writ Petition No. 43472 of 2011

Om Prakash and others
 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri K.K. Nirkhi

Counsel for the Respondent:
C.S.C.

Indian Evidence Act, 1872-Section-68presumption of genuineness of Regd.
Will-alleged to be executed on the same
dated of death of execution-itself creates
serious doubts-it is profounder to prove
beyond
reasonable
doubt-even
the
opposite parties lost in civil court itself
creates
serious
doubts
except
observation of suspicious nothing can be
presumed.

Held: Para 11

The contesting respondent no. 5 may
have lost the battle before the civil court
but the present petitioners who were the
defendants
have
also
not
gained
anything out of the said proceedings
except for an observation that the will
was suspicious.
Case law discussed:
2009 (107) RD 372; 2004 (96) RD 98; 2004
(96) RD 656
2 All] Om Prakash and others V. State of U.P. and others

985
(Delivered by Hon'bel A.P. Sahi,J.)

1. Heard Sri K.K. Nirkhi learned
counsel for the petitioner.

2. The contention raised is that the
orders passed by the Board of Revenue as
well as by the Revising Authority in
proceedings under Section 34 of the U.P.
Land Revenue Act, 1901, are erroneous
and even otherwise in view of the
proceedings of the civil court that
culminated in the decision in Second
Appeal No. 909 of 2010, vide judgment
dated 14.12.2010 by this Court, the
contesting
respondents,
particularly
respondent no. 5 had no claim surviving
and he could not have been extended the
benefit of mutation in his favour to the
holding of late Pyare Lal.

3. The dispute in short is in relation
to the agricultural holdings of late Pyare
Lal and the respondent no. 5 happens to
be his real nephew (brother's son). The
petitioners claim themselves to be the
sister's son of late Pyare Lal. They
contend that they have a registered will in
their favour and the same could not have
been discarded on the ground of mere
suspicion, moreso, when the findings of
the civil court are against the contesting
respondent no.5 who failed to prove his
title.

4. Before proceeding further, it
would be appropriate to refer to the
judgment of this court in second appeal
hereinabove. Instead of explaining the
same, the relevant portion of judgment is
extracted herein below:-

"Having considered the submission
of learned counsel for the parties and
perused the record, both the courts below
have recorded a categorical finding
holding that the plaintiff-appellant failed
to prove his title. It has been found that
the plaintiff had earlier filed a Suit No.
203 of 1990 wherein the Civil Court
while deciding the issue no.4 had found
that the plaintiff can get a declaration of
his title from the Revenue Court and it
had returned the plaint to the plaintiff for
being presented before the revenue court.
The plaintiff did not file the plaint before
the revenue court and has proceeded to
file the instant suit for injunction.

In the present proceedings a finding
of fact has been clearly recorded that the
plaintiff has failed to prove his title over
the land in question. Apart from the said
finding the courts below have refused to
grant injunction by holding that the
plaintiff ought to have first sought
declaration
of
his
title
from
the
appropriate court since his title has been
placed under a cloud by the defendantrespondents who claim title by virtue of
will executed by Pyare Lal. The plaintiffappellant admittedly is the nephew of the
deceased Pyare Lal. The trial court
while considering the will set up by the
defendant-respondents has recorded a
finding that it is suspicious since it was
obtained on the date Pyare Lal died.
The defendant's case was disbelieved
for that reason but it was not a suit for
cancellation of the will hence also a
declaration either way was required.
The suit for injunction hence could not be
maintainable unless a declaration was
made.

The submission that the suit for
injunction would be maintainable when
the plaintiff has been found in possession
and reliance upon the decisions cited by
learned counsel is concerned, in this case
986 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

both the courts below found that the
plaintiff has not proved his title whereas
the defendant's claim title through a
will, which is suspicious and therefore,
it held that since the title of the parties
is required to be adjudicated, no
injunction can be granted in favour of
the plaintiff. It was recorded by the trial
court that the plaintiff-appellant was
living with Pyare Lal his uncle and the
defendant-respondents who were his
nephews were also living since childhood
with Pyare Lal till he died. Therefore, on
the question of possession, it is unclear as
to whether the plaintiff-appellant was in
possession to the exclusion of the
defendant-respondents or the defendantrespondents were also in possession,
hence the decision relied by Sri Atul
Dayal, learned counsel for the plaintiffappellant on that question are clearly
distinguishable from the fact of the
present case.

The facts of the present case
indicates that there is a dispute of title
between the parties and the question of
possession though relevant but an
injunction could not be granted against
a co-claimant of rights.

Consequently there was no error in
the view taken by the courts below that
the plaintiff-appellant ought to get his
rights declared from the appropriate court.
More particularly when in an earlier suit
filed by him, the plaint was returned for
obtaining such a declaration from the
Revenue Court."

5. The respondent no. 5 - Mahabir
was the plaintiff-appellant. It is therefore
clear that he has to get his title declared
before he succeeds to stake any claim.

6. So far as the petitioners are
concerned they were the defendants in the
said suit. The High Court in the judgment
has clearly indicated that the will set up
by the petitioners is suspicious, hence, no
injunction could have been granted.

7. Sri Nirkhi contends that so long
as the will is not cancelled, there is a
presumption in favour of the will set up
by the petitioners and he has relied on the
apex court judgment in the case of Abdul
Rahim & others Vs. Sk. Abdul Zabar
& others, reported in 2009 (107) RD
372,
to
contend
that
a
registered
document carries with it a presumption of
its validity, so long it is not set aside. In
such a situation, the will set up by the
petitioners had to be accepted and the
courts below have committed an error by
discarding the same on the basis of mere
suspicion.

8. Learned counsel has further relied
on the judgment of Puran Singh Vs.
Board of Revenue, U.P., Allahabad &
others, reported in 2004 (96) RD 98, as
well as in the case of Sahed Jan @
Bonde & others Vs. Board of Revenue,
U.P. at Lucknow & others, reported in
2004 (96) RD 656, to contend that the
proceedings under Section 34 being
summary in nature the courts below have
erred in entering into the question of the
validity of the will of the petitioners.

9. Having considered the aforesaid
submissions, it is no doubt true that a
registered document has a presumption in
its favour but it is subject to any challenge
or any evidence required to be led to
prove such a document. In the instant case
the document is a registered will which
has to be proved in accordance with the
provisions of Section 68 of the Indian
2 All] Brij Nandan Singh V. State of U.P. and others

987
Evidence Act, 1872, and the presumption
is subject to such proof. This can only be
done in a regular proceeding before a
court of competent jurisdiction.

10. Not only this, prima facie, such a
will has to be proved before it is accepted.
In the instant case, a clear finding has
been recorded to the effect that the
petitioners failed to lead any evidence in
support
of
the
will
including
the
production of the attesting witnesses. It is
on this basis that the will has been
doubted. There is another circumstance
which has been indicated in the orders,
namely, that the death of the tenure holder
took place on 26th July, 1980. In such a
situation, the execution of the will on the
same day and its registration makes the
document doubtful. The authorities below
have therefore only expressed a doubt
which also stands corroborated by the
judgment in the second appeal quoted
hereinabove.

11. The contesting respondent no. 5
may have lost the battle before the civil
court but the present petitioners who were
the defendants have also not gained
anything out of the said proceedings
except for an observation that the will was
suspicious.

12. Considering the aforesaid facts
and circumstances of the case and the
discussion
made
hereinabove,
the
petitioners will also have to establish their
title in accordance with law and any
orders
passed
during
mutation
proceedings would always be subject to
the outcome of a regular suit. In such a
situation, I am not inclined to interfere
with the impugned orders.

13. The writ petition lacks merit and
is accordingly dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.08.2011

BEFORE
THE HON'BLE SUDHIR AGARWAL,J.

Civil Misc. Writ Petition No. 45471 of 2011

Brij Nandan Singh

 ...Petitioner
Versus
State of U.P. and another ...Respondents

Counsel for the Petitioner:
Sri J.A. Azmi
Sri Riyajuddin Ansari

Counsel for the Respondents:
C.S.C.

Constitution of India, Article 226-Denial
of
Fire
Arms
License-on
ground-no
adequate evidence regarding endanger
of life and liberty and by whom-heldauthorities ought not to behave like part
of old British-to crush every demand of a
pity subject-but deserves to consider
with grater respect and honour-with
more pragmatic and practical approach.

Held: Para 8

The authorities empowered to grant
licence under the Act ought not to
behave as if they are part of the old
British sovereignty and the applicant is a
pity
subject
whose
every
demand
deserved to be crushed on one or the
other pretext. The requirement of an
Indian citizen governed by rule of law
under the Indian Constitution deserved
to be considered with greater respect
and honour. The authorities thus shall
have considered the requirement of
applicant
with
more
pragmatic
and
practical approach. Unless they find that
in the garb of safety and security,
applicant in fact intend to use the