# Roop Narain & Anr v. D.D.C. , Varanasi & Anr

- **Citation:** (2020) 9 ILRA 358
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-07-22
- **Case number:** Writ-B No. 25271 of 1988
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/roop-narain-anr-v-d-d-c-varanasi-anr-45953
- **Pages:** 14

## Headnote

A. U.P. Consolidation of Holdings Act,
1953 - Section 12-objections filed by the
petitioners-the burden lies on petitioner
who assails a registered conveyance as
one executed by an imposter, has not
been discharged by the petitioners beyond
reasonable doubt-order passed by D.D.C.
can not be faulted-jurisdiction of the
9 All. Roop Narain & Anr. Vs. D.D.C., Varanasi & Anr.
359
D.D.C. to decide both questions of fact
and law is very wide-Apex Court approved
the principle that where the findings are
perverse or not supported by evidence, it
would be the duty of D.D.C. to examine
the entire case and appreciate any oral or
documentary evidence. (Para 3 to 40)

The petition is dismissed. (E-6)
List of cases cited: -

## Text

_Characters 0–39,996 of 47,858. This is a partial read: ask again with offset=39996 for what follows._

358 INDIAN LAW REPORTS ALLAHABAD SERIES
the tax. The non-use of the vehicle may
entitle the owner to seek a refund after
proving to the satisfaction of the Taxation
Officer in the prescribed manner that the
motor vehicle in respect whereof the tax
has been paid, had not been used, as
provided for under Section 12 of the Act,
1997 subject to surrender of the certificate
of registration.

16. The plea that the vehicle was not
in a road worthy condition and could not be
put to use on the roads without necessary
repairs being carried out cannot absolve the
owner or the person having possession of
the vehicle from the liability to pay tax. In
the event of the vehicle having not been put
to use on the roads during the currency of
the certificate of registration it is open to
the owner of the vehicle or the person
concerned to apply for refund of tax in the
manner prescribed. The law does not
require the Taxation Officer to justify the
demand for tax by proving that the vehicle
is in a fit condition and can be put to use or
that it had actually been plied on the roads.
The payment of tax and that too in advance
on every registered vehicle has been made
compulsory. At the same time the statute
also creates a provision for grant of refund
of tax whenever the person paying the tax
has not made use of the road by plying the
vehicle and substantiates his claim to the
satisfaction of the Taxation Officer. A
further
provision
for
surrender
of
registration has also been made in a case
where the owner of a motor vehicle does
not intend to use his vehicle for a period of
one month or more.

17. The payment of tax on every
registered vehicle having been made
compulsory as per the terms of the Act,
1997, the plea that the vehicle was in
repair/maintenance cannot be a ground to
evade the liability for payment of tax by the
owner of the motor vehicle whose name is
entered in the certificate of registration in
the absence of the certificate having been
surrendered as per the statutory provisions.
Any other view would defeat the intent and
purpose of the Taxation Act.

18. In view of the foregoing
discussions, we do not find any merit in the
writ petition.

19.

The
writ
petition
stands
accordingly dismissed.
----------
(2020)09ILR A358
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.07.2020

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ-B No. 25271 of 1988

Roop Narain & Anr. ...Petitioners
Versus
D.D.C. , Varanasi & Anr. ...Opposite Parties

Counsel for the Petitioners:
Sri D.S.P. Singh, Sri C.S. Garg, Sri D.S.
Mishra, Sri Dhan Shyam Mishra, Sushma
Devi, Sri Bipin Kumar Singh

Counsel for the Opp. Parties:
S.C., Sri Hari Kesh Singh, Sri O.P.
Srivastava, Sri Ram Chandra, Sri Ratnesh
Srivastava

A. U.P. Consolidation of Holdings Act,
1953 - Section 12-objections filed by the
petitioners-the burden lies on petitioner
who assails a registered conveyance as
one executed by an imposter, has not
been discharged by the petitioners beyond
reasonable doubt-order passed by D.D.C.
can not be faulted-jurisdiction of the
9 All. Roop Narain & Anr. Vs. D.D.C., Varanasi & Anr.
359
D.D.C. to decide both questions of fact
and law is very wide-Apex Court approved
the principle that where the findings are
perverse or not supported by evidence, it
would be the duty of D.D.C. to examine
the entire case and appreciate any oral or
documentary evidence. (Para 3 to 40)

The petition is dismissed. (E-6)
List of cases cited: -

1. Krishnapal & ors. Vs St. Of U.P. thru DM,
Banda & ors.,(2010) 110 RD 210

2. Prem Singh & ors. Vs Birbal & ors.,(2006) 5
SCC 353

3. Sheo Nand & ors. Vs D.D.C., Alld. & ors.,
(2000) 3 SCC 103

4. U.O.I. Vs M/s Chaturbhai M. Patel & Co.,
(1976) 1 SCC 747

5. Iqbal Ahmad Vs Naimul,(2004) 3 AWC 1974
(LB)

(Delivered by 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
RoopNarain

Hublal

Shyambaran
 Molai

Mahadeo

Shobhey
RoopNarain

Mahadeo

Shobhey

RoopNarain

Mahadeo

Shobhey

RoopNarain

Mst. Dauli @ Daulati

Mst. Dauli @ Daulati

4. Now, a one-third moiety of the
tenure held by Sudipal, was inherited by
360 INDIAN LAW REPORTS ALLAHABAD SERIES
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.
9 All. Roop Narain & Anr. Vs. D.D.C., Varanasi & Anr.
361
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
362 INDIAN LAW REPORTS ALLAHABAD SERIES
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
9 All. Roop Narain & Anr. Vs. D.D.C., Varanasi & Anr.
363
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'
364 INDIAN LAW REPORTS ALLAHABAD SERIES
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
9 All. Roop Narain & Anr. Vs. D.D.C., Varanasi & Anr.
365
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-inlaw (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
366 INDIAN LAW REPORTS ALLAHABAD SERIES
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 reevaluate 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
9 All. Roop Narain & Anr. Vs. D.D.C., Varanasi & Anr.
367
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 FormA, 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
368 INDIAN LAW REPORTS ALLAHABAD SERIES
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,
9 All. Roop Narain & Anr. Vs. D.D.C., Varanasi & Anr.
369
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: