IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No.977 of 2003 (M/S) Asgar S/o Peer Baksh and three others. .…..Petitioners Versus District Deputy Director of Consolidation/ Collector Haridwar Camp at Roorkee and two others. ……Respondents. Sri Rajendra Singh and Sri Nagesh Agarwal, leaned counsel for the petitioners. Sri Sudhir Kumar, learned Brief Holder for the State-respondent nos.1 and 2. Sri S.C. Bhatt, learned counsel for the respondent no.3. Date: - November 17, 2008. Hon’ble B.S. Verma, J. Heard Sri Rajendra Singh and Sri Nagesh Agarwal, learned counsel for the petitioners, Sri Sudhir Kumar, learned Brief Holder for the State-respondent nos.1 and 2 and Sri S.C. Bhatt, learned counsel for the respondent no.3. By means for this writ petition the petitioners have sought a writ, order or direction in the nature of certiorari quashing the orders dated 17.9.2003 & 9.1.2001 passed by the District Deputy Director of Consolidation/ Collector Haridwar Camp at Roorkee and Settlement Officer of Consolidation, Haridwar at Roorkee respectively containing as Annexure Nos.11 and 9 to the writ petition and it is further prayed that the order dated 12.4.1999 passed by the Consolidation Officer, Roorkee (south) containing Annexure No.5 to the writ petition is to be maintained. Brief facts giving rise to the writ petition are that one Late Peer Baksh was the original tenure holder and father of the petitioner nos. 1 and 2 and respondent no.3. Petitioner nos.3 and 4 are the legal heir of late Jigari son of late Peer Baksh. It is pleaded by the petitioners that Late Peer Baksh was son of Sri Imamuddin, resident of Village Bhalsavagaj, Pargana Bhagwanpur, Tehsil Roorkee, District Haridwar. He had sold the land in dispute on 23.6.1997 by a registered sale deed. This fact is not in dispute. After the death of Late Peer Baksh, Akbar-respondent no.3 had filed objection under Section 9-A on the basis of succession as well as on the basis of will dated 11.1.1997 and it is also pleaded in their objections that sale deed was obtained by fraud. Only the respondent no. 3 is the legal heir of Late Peer Baksh on the basis of unregistered will. The Consolidation Officer after hearing the parties and on the basis of evidence came to the conclusion that the sale deed was executed by Late Peer Baksh in his life time and it was held that the petitioners are entitled to mutate their names on the basis of the sale deed and the objection of the respondent no.3 was rejected. Aggrieved by the order of the Consolidation Officer, the petitioner as well as the respondent no.3 have preferred separate appeals before the Settlement Officer of Consolidation. The appeal was preferred by the petitioners on the ground that the share of the petitioners have not been disclosed by the Consolidation Officer and by the order of the Assistant Settlement Officer Consolidation, the 1/3rd share has been determined to each, i.e., petitioner nos.1 and 2 and Late Jigari. The appeal which was preferred by the respondent no. 3 was allowed and the sale deed and unregistered will were also ignored by the Settlement Officer Consolidation. And it has been held that will which was executed in favour of the respondent no.3, is surrounded of suspicious circumstances being an unregistered will and the sale deed has also been ignored on the ground that no attesting witness was produced by the petitioner, and Sri Rajendra Prasad Sharma, document writer who has drafted sale deed, has proved the sale deed. Aggrieved by the order of the Settlement Officer Consolidation, the petitioner preferred the revision which was also dismissed by the Deputy Director of Consolidation on the same ground. I have heard the learned counsels for the petitioners and respondent no. 3 and perused the averments made in the writ petition as well as in the counter affidavit and also perused the relevant record. The only controversy to be decided in the this writ petition is whether the petitioners are entitled to record their names on the basis of sale deed or the respondent no. 3 is the legal heir only on the basis of the alleged unregistered will dated 11.1.1997. The learned counsel for the petitioners has vehemently contended that the Rajendra Prasad Sharma- attesting witness, one other witness Mehar Singh son of Sri Khanchand and the petitioner no. 1-Asgar were also examined to prove the possession as well as the sale deed which was executed by Late Peer Baksh on 23.6.1997 in favour of the petitioner nos. 1 and 2 and late Jigari. Jigari who died during the pendency of the revision and the petitioner nos. 3 and 4 are the legal heirs of Late Jigari who were impleaded in the revision as well. Learned Settlement Officer Consolidation has committed manifest error of law in holding that the sale deed was proved by scribe as well as attesting witness Sri Rajendra Prasad Sharma who is not the resident of the same village. It is not necessary that the scribe cannot be an attesting witness. The sale deed was duly proved by Asgar-petitioner no. 1 himself and by Sri Rajendra Prasad Sharma. The Settlement Officer Consolidation has ignored the sale deed without any basis on the ground of suspicion and has held that the other attesting witnesses were not examined. There is no legal requirement that all the attesting witness be examined. Even in the case of sale deed, the purchaser can alone prove the sale deed which was executed in his favour. It is also not disputed that no civil suit was filed by the respondent no. 3 for cancellation of the sale deed. The sale deed is voidable. It is not ab initio void. The revenue court can only ignore the sale deed which is ab initio void. The learned Settlement Officer Consolidation has fell into error in holding that the sale deed was not executed in favour of all the four sons because the three sons which were major at the time of purchasing the land had paid the consideration and got sale deed executed in their favour which was duly proved by the witnesses. The only ground was available to the petitioner, if the sale deed was obtained by fraud or misrepresentation, the suit ought to have been filed in the civil court for cancellation of the sale deed on the ground of fraud or misrepresentation. No such suit has been filed. The finding of the Settlement Officer of Consolidation as well as the Deputy Director of Consolidation is erroneous in law and cannot be sustained. Because if the land was transferred in the life time of the tenure holder before his death nothing remains for succession. The writ petition is liable to be allowed. The writ petition is allowed. The impugned orders passed by the Settlement Officer Consolidation in Appeal No. 976 and Revision No. 440 are set aside and the order passed by the Consolidation Officer dated 12.4.1999 (Annexure No.5) as well as the appellate Court passed in the Appeal No. 1024 of the petitioner which was decided on 31.5.2001 are maintained. Interim order dated 16.10.2003 stands vacated. All pending applications stand disposed of accordingly. Dated: 17.11.2008 (B.S. Verma, J.) RMY