Point of Law:
The Evidence Act codified the law and we should have expected that if s.68 was intended to express that a document required by law to be attested should not be used as evidence for any purpose until on attesting witness at least had been called, then the words “for any purpose” would have found a place in the Section.

JUDGMENT :

1. Heard Shri Sanjeev Singh, learned counsel for the petitioners, Shri T.P. Singh, Senior Counsel, assisted by Shri Siddharth Nandan, Advocate, representing respondent no. 3 and the learned Standing Counsel, representing respondent Nos. 1 and 2. The counsel for the parties have also filed their written arguments which are part of record.

2. The present writ petition arises from proceedings registered under Section 9-A(2) of the Uttar Pradesh Consolidation of Holdings Act, 1953 (hereinafter referred to as, 'Act, 1953'). The plots in dispute in the consolidation proceedings and in the present writ petition are Plot Nos. 448/2, 381/2, 447/1 and 396/1 (hereinafter referred to as, 'disputed plots') included in Khata Nos. 59 and 116 and situated in Village-Singaha, District-Kushinagar (previously District-Deoria). One Gaya, son of Parag, was the original tenure holder of the disputed plots. Shivraji was the widow of Gaya. Munia was the daughter of Gaya and Shivraji. Petitioners are the sons of Munia. Gaya belonged to the Lohar community. Gaya died before the date of vesting as defined in Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as, 'Act, 1950'), and in the revenue records of 1359 Fasli and 1379 Fasli Shivraji was recorded as tenant of the disputed plots. After the death of Shivraji, the petitioners were recorded as tenants of the disputed plots and continued to be recorded as such in the basic year records of the village, i.e., the records available on the date the notification under Section 4(2) of the Act, 1953 was published notifying the village under consolidation operations.

3. During the consolidation operations, the respondent no. 3 filed objections against the entries in the basic year records claiming himself to be the sole tenant of the disputed plots. On the objections of respondent no. 3, Case no. 1016 under Section 9-A(2) of the Act, 1953 was registered before the Consolidation Officer, Hata at Kasya, District-Deoria (hereinafter referred to as, 'C.O.'). The case set up by respondent no. 3 was that Gaya and Shivraji had two sons, namely Thakur and Pheku, and respondent no. 3 was the son of Thakur. Thakur died before Gaya. It was the case of respondent no. 3 that Pheku had died issueless, therefore, the share of Pheku also devolved on respondent no. 3.

4. The petitioners contested the case set up by respondent no. 3. The petitioners denied that Thakur and Pheku were the sons of Gaya or that respondent no. 3 was the grandson of Gaya. However, the petitioners admitted that Thakur and Pheku were the sons of Shivraji. The case of the petitioners was that Gaya had only one daughter namely Munia, and the petitioners were the sons of Munia. The petitioners alleged that, before her marriage with Gaya, Shivraji was married to one Budhai, resident of Village-Khairatiya and Thakur and Pheku were the sons of Budhai. The petitioners alleged that Thakur and Pheku came with Shivraji after her marriage to Gaya. On their aforesaid pleadings, the petitioners claimed to be the tenants of the disputed plots under Section 171(2)(h) of the Act, 1950 because they were the sons of the daughter of Gaya. In the alternative, the petitioners also alleged that before his death, Gaya had executed a registered Will dated 29.3.1946 bequeathing his entire property, including the disputed plots, in favour of petitioner no. 1. On the aforesaid pleadings, the petitioners prayed that the objections of respondent no. 3 be rejected and the entries in the basic year records be retained.

5. In order to decide the dispute as who was the heir of Gaya and consequently the tenant of the disputed plots, the C.O. framed issues relating to the validity of the Will dated 29.3.1946 and correctness of the rival pedigrees pleaded by the parties. Before the C.O., respondent no. 3 filed certified copies of the extracts of birth register of 1916 and 1928 and certified copy of the death certificate of 1943 to prove that Thaku