HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. 05 CIVIL MISC. WRIT PETITION NO. 17066 OF 2011 Shiv Narayan and others Vs. Deputy Director of Consolidation, Ballia and others. Hon'ble A.P. Sahi, J.
This petition questions the correctness of the order of the Deputy Director of Consolidation dated 11th November, 2010 setting aside the remand order of the Settlement Officer, Consolidation and affirming the order of the Consolidation Officer holding that the respondent no. 2-Sarswati is the real heir entitled to succeed to the holding of Khata No. 304 plot no. 695/5 and accordingly, the name of the petitioners should be expunged and should be entered in the main column of Bhumidhar.
The dispute began with the filing of the objections of both sides. The respondent no. 2-Sarswati on 10th August, 1990 filed an objection, a copy whereof has been filed as annexure 3 to the writ petition. The said objection simply discloses that the respondent no. 2 has already acquired Bhumidhari rights over the land in dispute and that the petitioners' father Sripati got his name entered with the collusion of the local Lekhpal, who had no concern with the property in dispute. She further contended that she was in adverse possession of the land as her name was entered in column 9 of the relevant revenue extract and she being the owner of the holding, her name deserves to be accordingly recorded. The Consolidation Officer allowed the objection of the respondent no. 2 vide order dated 29th March, 2008.
A parallel objection was filed by the father of the petitioners and the respondent nos. 3 and 4, late Sripati, which was rejected by the same order dated 29th March, 2008.
An appeal was filed by the petitioners and the same was allowed on 23rd October, 2008 by the Settlement Officer Consolidation recording a clear finding that the Consolidation Officer has failed to take notice of the judgments that have been relied upon by the petitioners. Not only this, the relevant revenue records relating to 1359 Fasli, 1356 Fasli and 1362 Fasli clearly indicated that Shankar was recorded as a tenure holder, who died issueless in the year 1988 whereafter the names of the petitioners were rightly recorded and continued in the basic year entry. The Settlement Officer, Consolidation therefore held that the Consolidation Officer has committed a manifest error, inasmuch as, the revenue records indicated a manipulation in relation to Khata No. 19 which does not confer any right on the respondent no. 2 on the strength of such an entry. The Settlement Officer, Consolidation, therefore, remanded the matter to the Consolidation Officer to decide the matter afresh.
Aggrieved, the respondent no. 2 preferred a revision which has been allowed holding that since the evidence was available, the Settlement Officer, Consolidation ought to have decided the matter himself instead of remanding the matter back. The Deputy Director of Consolidation went a step further to hold that there was no dispute between the parties about the date of death of Shanker in 1945. He further went on to record that since the disputed land was submerged with water for 8 months, therefore, it cannot be presumed that either Shanker or Sripati were in possession exclusively throughout over the land in dispute.
On the basis of the aforesaid two findings, the Deputy Director of Consolidation allowed the revision and set aside the remand order of the Settlement Officer, Consolidation and restored the order of the Consolidation Officer.
Sri Ashutosh Srivastava, learned counsel for the petitioners submits that the Deputy Director of Consolidation committed a manifest error, inasmuch as, firstly there was no admission on the issue relating to the date of death of Shanker on behalf of the petitioners and, therefore, the impugned order is perverse and secondly, merely because the land was submerged with water for 8 years would not by itself be an evidence of there being no possession of the petitioners or late Shanker. He, therefore, contends that the Deputy Director of Consolidation has recorded perverse findings and has committed the same mistake that was evident in the order of the Consolidation Officer for which the Settlement Officer, Consolidation was fully justified in remanding the matter back to the Consolidation Officer.
Replying to the said submissions, Sri Rahul Sahai, learned counsel for the respondent no. 2 submits that the findings that have been recorded are findings of fact and the Deputy Director of Consolidation had the authority to proceed to decide the matter in view of the provisions as contained in Section 48 (1) of the U.P. Consolidation of Holdings Act, 1953. He contends that the Consolidation Officer has to proceed to decide the matter on the basis of evidence that was led and, therefore, there was no necessity to remand the matter and secondly, the Deputy Director of Consolidation himself has recorded findings which can be sustained in view of the evidence that has been discussed by the Consolidation Officer.
Having heard learned counsel for the parties, the petitioners as well as the respondent nos. 3 and 4 are real brothers and sons of late Sripati. Late Sripati is the real brother of late Shanker as is evident from the pedigree reproduced hereinbelow:
Radha Shanker Sripati Shiv Narayan Harinarayan Shrikishun Devnath Jai Narain One late Shiva Nand Ojha husband of the respondent no. 2 is alleged to have acquired rights in view of the entry of his name under column 9 thereby claiming an adverse possession as against the true owners and also by virtue of his names recorded earlier.
The contention that Khasra of 1356 Fasli would be conclusive has to be construed for the purpose of acquisition of rights in the light of provisions contained in Sections 18 and 19 of the U.P. Zamindari Abolition and Land Reforms Act, 1950. The Deputy Director of Consolidation, in the opinion of the Court, has committed the same error which has been made the basis for setting aside the order of remand passed by the Settlement Officer, Consolidation. The evidence relied upon by the petitioners that Shanker died in 1988 has been brushed aside on the conclusion that Shanker had died on 25.09.1945. To support this finding, the Deputy Director of Consolidation records an admission on the part of the petitioners in the operative part of the judgment.
Learned counsel for the respondents has been unable to point out the said admission made by the petitioners. The aforesaid conclusion of the Deputy Director of Consolidation, therefore that there was no dispute with regard to the date of death of Shanker is patently erroneous and perverse. Further, the submersion of land under water for more than 8 moths does not prove the possession of the petitioners, is a manifestly erroneous finding without any basis in spite of the fact that the petitioners had filed ample documentary evidence to prove the same. The Deputy Director of Consolidation, therefore, fell in error in reversing the findings and recording new findings himself for which the matter had been rightly remanded by the Settlement Officer, Consolidation. In the opinion of the Court, the Deputy Director of Consolidation wrongly exercised his jurisdiction in proceeding to decide the entire dispute himself which cannot be sustained for the reasons given herein above.
Sri Rahul Sahai, learned counsel for the respondent no. 2 stated that he does not propose to file any counter affidavit and the learned Standing Counsel along with the said respondents urged that the matter be disposed of finally at this stage itself on the basis of the facts that are available on record. The respondent nos. 3 and 4 are the real brothers of the petitioners and are proforma parties and in view what has been stated in paragraph 6 of the writ petition, the Court does not find necessary to issue notice to the said respondents.
Accordingly, in view of the findings reached by this Court and also the fact that the respondent no. 2 has virtually not been able to demonstrate any material or show any legal basis to sustain the order of the Deputy Director of Consolidation, the same is hereby quashed. The writ petition is allowed, the order dated 11.11.2010 is set aside. The Consolidation Officer shall now proceed to decide the matter again as per the remand order dated 23.10.2008 passed by the Settlement Officer, Consolidation as expeditiously as possible but not later than six months from today.
Dt. 24.03.2011 Akv