Krashna Dev vs Dy. Director Of Consolidation, ...
2013 Latest Caselaw 815 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Judgment Reserved on : 03.04.2013
 
Judgment Delivered on : 12.04.2013
 

 
Court No. - 18
 
Case :- WRIT - B No. - 40752 of 2006
 
Petitioner :- Krashna Dev
 
Respondent :- Dy. Director Of Consolidation, Allahabad & Others
 
Petitioner Counsel :- D.C. Dwivedi,Munna Pandey,Sanjay Agrawal
 
Respondent Counsel :- C.S.C.,B.K.Srivastava,Basudev Shukla,Dhiraj Srivastava,P.K. Pandey,R.K. Pandey
 

 
Hon'ble Sanjay Misra,J.

This writ petition arises out of proceedings under Section 9-A of the U.P. Consolidation of Holdings Act, 1953, in Case No.542/541/543 of 2006 (Krishna Dev Vs. Raj Narain and others). The dispute relates to Khata Nos.464, 463 and 170 situate in village Gainda Umariya, Pargana and Tehsil Soraon, District Allahabad. It is directed against the order dated 23.05.2006 (Annexure-4 to the writ petition) passed in Revision No.1556/1307 (Raj Narain Vs. Krishna Dev and others) by the Deputy Director of Consolidation.

The land in dispute was entered in the basic year in the name of Amar Bahadur son of Ayodhya Prasad Singh. The petitioner, Krishna Dev claimed to be the adopted son of Lal Bahadur who is brother of Amar Bahadur. The petitioner, Krishna Dev filed objection under Section 9-A of the Act inter alia claiming that he is adopted son of Lal Bahadur and is his heir and legal representative. The name of Amar Bahadur has been wrongly entered in the revenue record Form-5 hence it be expunged and the name of the petitioner, Krishna Dev be recorded. The petitioner claimed to be in possession of the land. He pleaded that the name of Amar Bahadur was wrongly entered in P.A Form No.11. It was also stated that prior to start of the consolidation proceedings the petitioner had initiated proceedings under Section 34 of the Land Revenue Act for mutation of his name but those proceedings had abated due to start of consolidation proceedings.

The Consolidation Officer has recorded that prior to Amar Bahadur accepting the claim of the petitioner in toto he had framed three issues and the parties led their evidence. The registered adoption deed, dated 18.06.1971 and school certificate were filed by the petitioner to show that deceased Lal Bahadur had taken the petitioner in adoption and the petitioner was shown as son of Lal Bahadur in the school certificate. The petitioner also led oral evidence by producing Bhola son of Jaipal, Krishna Dutt son of Ram Kumar and the Sarpanch to prove the adoption deed since they were the witnesses of the adoption deed.

During the pendency of the proceedings before the Consolidation Officer but after admitting the claim of the petitioner Amar Bahadur died and Raj Narain, the Respondent No.3 filed his objection claiming the land on the ground that late Amar Bahadur has executed a Will in his favour on 13.10.1974. In support of his objection Raj Narain produced Vishwanath son of Sri Pal, Sanju son of Kamasidin and Ram Kishore son of Vishwanath. However, the Consolidation Officer has recorded that the witnesses did not produce themselves for cross examination hence after several opportunities given to them in a period of ten years an order was passed to proceed ex-parte against them.

The Consolidation Officer has recorded that Amar Bahadur had himself deposed as a witness and had categorically admitted the entire claim of the petitioner hence he allowed the objection of the petitioner and directed his name to be recorded in the revenue record and further directed that the name of Amar Bahadur and Raj Narain be expunged.

The Respondent No.3, Raj Narain then appears to have filed a restoration application against the order dated 04.09.2002 of the Consolidation Officer as also to recall the earlier orders dated 19.04.2002 and 05.06.2002 whereby the case was directed to proceed ex-parte against him. This restoration application was rejected by the Consolidation Officer vide his order dated 26.07.2004. In this order the Consolidation Officer has recorded that Raj Narain was given opportunity to produce his witnesses for cross examination and for proving the Will but even after lapse of ten years he failed to do so. As such his restoration application dated 18.10.2002 was rejected.

From the record it appears that the Respondent No.3, Raj Narain filed an Appeal No.2055 under Section 11(1) of the Act before the Settlement Officer Consolidation which was rejected. However, such order of the Settlement Officer Consolidation has not been brought on record of this writ petition by the petitioner. It has been filed alongwith the counter affidavit.

The Respondent No.3, Raj Narain then appears to have filed a Revision No.1556/1307 before the Deputy Director of Consolidation against the orders dated 27.12.2004 passed in Appeal No.2055 by the Settlement Officer Consolidation as also against the orders dated 19.04.2002, 04.09.2002 and 26.07.2004 passed by the Consolidation Officer in Case No.542/541/543.

The Deputy Director of Consolidation has allowed the Revision No.1556/1307 of the Respondent No.3 and has remanded the matter to the Consolidation Officer for taking fresh evidence, and to call the witness of Raj Narain for cross examination and then decide the case on its merits. While doing so the Deputy Director of Consolidation has reasoned that in para 7 of the memorandum of appeal (before the Settlement Officer Consolidation) Raj Narain had taken a specific plea that when the natural father namely Iqbal Bahadur of the petitioner Krishna Dev had died then the petitioner had got his name recorded over the properties of his natural father by virtue of succession which were situate in village Siswa. This fact was not denied by Krishna Dev. He found that neither the Consolidation Officer nor the Settlement Officer Consolidation had dealt with this pleading of Raj Narain nor they had considered the effect on the claim of Krishna Dev over the property of his adoptive father.

The second reason given by the Deputy Director of Consolidation for remanding the matter to the Consolidation Officer was that the Consolidation Officer had framed three issues. The third issue framed was as to what is the area of the Gata's in dispute. The Deputy Director of Consolidation found that this issue had not at all been discussed or decided by the Consolidation Officer.

The third reason for remand given by the Deputy Director of Consolidation was that the witness produced by Raj Narain to prove the will in his favour was not produced by him for cross examination hence the Consolidation Officer was required to exercise his powers under Section 38 of the Act to enforce attendance of the witness.

During pendency of this writ petition the petitioner Krishna Dev died and was substituted by his heirs and legal representatives who are the Petitioners No.1/1 and ½. By two impleadment applications the Petitioners No.2, 3, 4, 5 and Respondents No.4, 5 and 6 have been impleaded.

Sri B.N. Agarwal, learned counsel for the petitioner, learned Standing Counsel for the State respondents and Sri B.K. Srivastava, learned senior counsel assisted by Sri Neeraj Srivastava have been heard at length. The respondents have filed a stay and injunction application however with the consent of learned counsels for all the parties this petition is being decided finally. Affidavits have been exchanged.

Sri B.N. Agarwal, learned counsel for the petitioners has submitted that the adoption deed of the petitioner Krishna Dev was duly proved and the brother of the adoptive father had accepted the claim of the petitioner and admitted that his name was erroneously and by mistake recorded in the revenue records. He states that in view of the admission of Amar Bahadur made in his oral statement before the Consolidation Officer the land did not belong to him since he could not inherit it after death of his brother Lal Bahadur for the reason that the petitioner Krishna Dev was the son (adopted) of Lal Bahadur. According to him the son would be earlier in the line of succession and Amar Bahadur could succeed to his brothers property only if his brother Lal Bahadur had died issueless leaving no other preferential heir to inherit his property.

Sri Agarwal has submitted that under such circumstances Amar Bahadur could not bequeath the property of Lal Bahadur to Raj Narain by his will dated 13.10.1974. He states that Raj Narain could not prove the will since his witness did not open themselves for cross examination hence their statement was rightly ignored by the Consolidation Officer. As such when the will was not proved and Amar Bahadur had no interest in the property then Raj Narain cannot claim any interest in the property.

According to Sri Agarwal the remand order of the Deputy Director of Consolidation is illegal since it amounts to enabling the Respondent No.3 to fill in the lacunae in his case which cannot be permitted as the Respondent No.3 did not produce his witness for cross examination and avoided the court for ten years. Moreover, no such plea that the petitioner has inherited his natural father's property in village Siswa was taken by the Respondent No.3 before the Consolidation Officer hence the plea raised by him regarding effect of adoption under Section 12 of the Hindu Adoption and Maintenance Act, 1956 cannot now be adjudicated.

In support of his submissions Sri Agarwal has cited the following decisions:-

i)(2006) 1 SCC 530 - Regional Manager SBI Vs. Rakesh Kumar Tiwari. He relies on paragraph 14 and 16 of this judgment to submit that if no plea is put forward then no amount of evidence can be looked into unless such a plea is raised. He refers to the objection of the Respondent No.3 herein and states that no plea whatsoever was taken by him before the Consolidation Officer regarding the effect of the petitioner's adoption.

ii)(2006) 4 AWC 4026 (SC) - Hameed & others Vs. Kummottummal Kunhi & others. Sri Agarwal submits that when full opportunity was given to led evidence by the Trial Court and it was not led then the appellate court was not justified in remanding the matter to produce evidence in order to fill the lacunae in evidence. According to him in the present case the Deputy Director of Consolidation has done just that and although the Respondent No.3 did not produce his witnesses for cross examination for a long period of ten years inspite of opportunities granted to him the Deputy Director of Consolidation has illegally remanded the matter only to enable the Respondent No.3, Raj Narain to fill the lacunae in his evidence.

iii)2005(98) RD 323 - Brahm Dev Vs. Assistant Director of Consolidation and others. Sri Agarwal has argued that when opportunity was given to prove the will dated 13.10.1974 and it was not availed then a remand order could not be passed to fill up the lacunae.

iv)1999 (4) AWC 3217 - Malku and others Vs. Deputy Director of Consolidation and another. He states that the Deputy Director of Consolidation ought not to have remanded the matter since under Section 48 of the U.P. Consolidation of Holdings Act the Deputy Director of Consolidation has ample power to permit leading of evidence and record finding of facts afresh. According to him when the matter was an old one then the remand ought to have been avoided and the Deputy Director of Consolidation should have decided the controversy finally in the revision itself.

Sri B.K. Srivastava, learned senior counsel appearing for the respondents has argued that the petitioner was at fault for not cross examining the respondents witnesses and although ten years lapsed he never made any attempt to call the witness for cross examination. According to him, the order of the Consolidation Officer did not take into account the objection of Raj Narain nor discussed the claim raised on the basis of will dated 13.10.1974 and hence such order of the Consolidation Officer was an ex-parte order.

He states that the plea regarding the effect of Section 12 of the Hindu Adoption and Maintenance Act, 1956, was not available to the respondent during the proceedings before the Consolidation Officer hence it could not be taken. It was only thereafter that the respondent learnt that the petitioner has been recorded over the property of his natural father in village Siswa that such a plea was raised in paragraph 7 of the memorandum of appeal before the Settlement Officer Consolidation. He states that the Consolidation Courts are court of fact and hence even if a new plea is raised at the appellate stage it can be adjudicated since the strict rule of pleadings are not applicable to the Consolidation Courts.

A further submission made by Sri Srivastava is that there have been several transfers in the land in dispute. Therefore the Issue No.3 framed by the Consolidation Officer regarding the area of the Gata's in dispute ought to have been decided by the Consolidation Officer and having not been decided the Deputy Director of Consolidation was correct in remanding the matter since it involves leading of evidence. According to him the Deputy Director of Consolidation could take additional evidence but when no evidence has at all been led on Issue No.3 and the issue has not been decided by the Consolidation Officer then it could be led only before the Consolidation Officer who is the first Consolidation Court hence the order of remand has been justified.

Learned counsel for the respondent has referred to the order dated 27.12.2004 passed in Appeal No.2055 by the Settlement Officer Consolidation which he has brought on record with his counter affidavit. This appeal was filed by Raj Narain the Respondent No.3. According to him, the Settlement Officer Consolidation has clearly recorded that the witness of the respondent was not cross examined hence the will dated 13.10.1974 was not proved. Learned counsel states that the Settlement Officer Consolidation should have summoned the respondents witnesses for cross examination and the petitioner should have applied for production of the respondent's witnesses. He states that the rejection of his appeal on the ground that he did not prove the will was therefore erroneous.

From the submission of learned counsels and from the record the following facts have emerged:-

i)The adoption deed dated 18.06.1971 of the petitioner Krishna Dev has been found valid by all the three consolidation courts which establishes that he is the adopted son of Lal Bahadur.

ii)Amar Bahadur and Lal Bahadur are brothers.

iii)Amar Bahadur deposed before the Consolidation Officer that he was wrongly recorded over the land in dispute. He admitted that he had no share in the land.

iv)Amar Bahadur however executed a will dated 13.10.1974 in favour of Respondent No.3, Raj Narain.

v)The petitioner inherited his natural father's property in village Siswa and got his name entered in the revenue records.

vi)The Respondent No.3 did not produce his witnesses (who had deposed to prove the will) for cross examination for a period of ten years hence the Consolidation Officer directed the case to proceed ex-parte against him.

vii)The Issue No.3 framed by the Consolidation Officer was not decided by the Consolidation Officer which relates to the area of the gatas in dispute.

The controversy to be decided in this writ petition is whether the impugned order of remand is justified or the Deputy Director of Consolidation should have decided the Revision on its merits. For this purpose the reasons given by the Deputy Director of Consolidation for remanding the case to the Consolidation Officer are to be weighed. The first reason for remand was the averment made by the Respondent No.3, Raj Narain in paragraph 7 of his memorandum of Appeal No.2055 filed before the Settlement Officer Consolidation.

This plea is relatable to the provision of Section 12 of the Hindu Adoption and Maintenance Act, 1956. Section 12 is reproduced hereunder:-

"12. Effects of adoption.- An adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of the adoption and from such date all the ties of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family:

Provided that-

(a) the child cannot marry any person whom he or she could not have married if he or she had continued in the family of his or her birth;

(b) any property which vested in the adopted child before the adoption shall continue to vest in such person subject to the obligations, if any, attaching to the ownership of such property, including the obligation to maintain relatives in the family of his or her birth;

(c) to adopted child shall not divest any person of any estate which vested in him or her before the adoption."

In view of Section 12 quoted above the petitioner's right to inherit the property of his natural father in village Siswa after adoption are alleged to have been extinguished. The Respondent No.3, Raj Narain has pleaded that when such right of the petitioner stood extinguished but even then he inherited his natural father's property in village Siswa after he was adopted by Lal Bahadur indicates that the adoption was only an eyewash. The fact that the petitioner has inherited his natural father's property in village Siswa after his adoption is not denied by him.

Therefore when the fact alleged by the Respondent No.3, Raj Narain has not been denied by the petitioner Krishna Dev then there is no issue between the parties on this question of fact. The only adjudication that is now required is the effect of adoption on this admitted fact. The Deputy Director of Consolidation has recorded in his order that the Consolidation Officer has not adjudicated this question. It is the case of Respondent No.3 that this fact was not in his knowledge when the proceedings were going on before the Consolidation Officer. He states that when he came to know about this inheritance he has taken the plea in his appeal before the Settlement Officer Consolidation. The Settlement Officer Consolidation has also not discussed or given any finding on this question.

Clearly when there is no issue of fact involving any dispute between the parties and the fact alleged by one is admitted by the other then the effect of adoption on the claim of the petitioner in the property of his adoptive father was to be considered.

The second reason given by the Deputy Director of Consolidation for remanding the case was that Issue No.3 was framed by the Consolidation Officer but he did not decide it. The Settlement Officer Consolidation also did not decide Issue No.3. This issue was regarding the area of the gatas in dispute. Since the land had undergone change in identity as alleged the issue had to be decided on evidence. Before the Consolidation Officer Amar Bahadur admitted the claim of the petitioner after the issue had been framed hence the Consolidation Officer found that there was no dispute on this issue between the petitioner Krishna Dev and Amar Bahadur. The Consolidation Officer found that the Respondent No.3, Raj Narain had not proved the will dated 13.10.1974 hence he had no interest in the property. The Settlement Officer Consolidation affirmed this finding of the Consolidation Officer.

A decision on this issue would be required only if the Respondent No.3, Raj Narain succeeds in establishing any right, title or interest in the property. In the absence of any interest in the property this issue cannot be decided at the instance of Respondent No.3, Raj Narain and also for the reason that he claims to have stepped into the shoes of Amar Bahadur by virtue of the will and Amar Bahadur had already accepted the claim of the petitioner Krishna Dev before executing the will.

The last reason given by the Deputy Director of Consolidation for remanding the case was that Raj Narain, Respondent No.3 was deprived opportunity to prove the will dated 13.10.1974 hence he directed the Consolidation Officer to exercise his power under Section 38 of the Consolidation of Holdings Act and enforce the attendance of the respondents witness for cross examination.

The fact as narrated in the order of the Consolidation Officer is that for a period of ten years the Respondent No.3, Raj Narain did not produce his witness to be cross examined. After giving several opportunities during the ten years when the Respondent No.3, Raj Narain did not bring his witness for cross examination the Consolidation Officer directed the matter to proceed ex-parte. This finding of the Consolidation Officer has been disputed by the Respondent No.3 to be incorrect. He has stated in the counter affidavit that the petitioner should have got the respondents witness summoned to be cross examined. The Respondent No.3 alleged fault on the part of the petitioner for failing to cross examine the respondents witness.

Insofar as the first reason given by the Deputy Director of Consolidation for remand is concerned the fact that the petitioner has inherited the property of his natural father in village Siswa is not disputed by him. The effect of adoption is that the petitioner shall be deemed to be the child of his adoptive parents and all his ties in the family of his birth shall be deemed to be severed. Clearly he would have no legal rights in the family of his birth for any purpose. Hence if he takes property from his family of birth an objection can be raised by the claimants to such property. But the claimants have to come forward in case they want to enforce their rights in the property of the family of birth of the adopted child. In case no such claimant comes forward then there can be no bar for the adopted child to be given the property of his natural father also. This was an admitted fact and there was no dispute of the facts between the parties.

In the present case there is nothing on record to indicate that there was any claimant to the property after the natural father of the petitioner died. Hence the adoption deed and the factum of adoption cannot be doubted on this score. Moreover, all the three Consolidation Courts have recorded concurrent findings of fact and have upheld the adoption deed.

It is not for the Respondent No.3, Raj Narain to take an objection based on Section 12 of the Hindu Adoption and Maintenance Act, 1956 since he has no concern whatsoever with the petitioners family of birth. There can be no adverse effect on the petitioners rights to inherit in his adoptive family only for the reason that he has also been given the property of his late natural father without any dispute in that family. Under such circumstances when this issue was based on admitted facts and there was no dispute between the parties on this fact then a remand order was not at all required. The view of the Deputy Director of Consolidation on this question was clearly erroneous when he directed a remand to decide the effect of adoption.

The third reason given by the Deputy Director of Consolidation for remand was that the Consolidation Officer should have given opportunity to the Respondent No.3, Raj Narain to prove the will dated 13.10.1974. He also directed the Consolidation Officer to exercise his power under Section 38 of the Consolidation of Holdings Act to enforce the attendance of the respondents witnesses for cross examination.

The facts of the case indicate that the Respondent No.3, Raj Narain produced a witness to prove the will dated 13.10.1974. This witness gave his oral statement. Thereafter for a period of ten years he avoided appearance for cross examination and ultimately the proceedings were directed to proceed ex-parte against him. The claim of Respondent No.3, Raj Narain was solely based on the will dated 13.10.1974. He was required to prove the will. In case he does not lead evidence to prove the will then his burden is not discharged . In the present case his witness who appeared to prove the will did not produce himself to be cross examined. For a period of ten years the Consolidation Officer gave him opportunity to present himself but he failed. Therefore his oral statement in examination-in-chief was a statement that did not face cross examination. Clearly the Consolidation Officer after waiting and giving opportunity repeatedly for a period of ten years had no other option but to proceed ex-parte. Under such circumstances the will dated 13.10.1974 was not proved by the witnesses of the Respondent No.3, Raj Narain.

The Deputy Director of Consolidation has remanded the case to the Consolidation Officer to exercise his power under Section 38 of the Consolidation of Holdings Act. Under this section the Consolidation Authorities have power to enforce attendance of witnesses. In the present case the Respondent No.3, Raj Narain had to prove the will dated 13.10.1974. In case the witnesses to prove the will were avoiding then the Courts could compel them to appear for examination and summons could be issued. But the Courts cannot be made an instrument to act for a party for proving his case and creating or bringing evidence. The witness was produced by the Respondent No.3, Raj Narain. It is not his case that he had requested the Court to summon a necessary witness or that the witness is avoiding the court. When the Respondent No.3, Raj Narain had himself produced his witness and such witness was not produced by him to be cross examined then the consequences were to follow. There is no averment made by him that his own witness refused to be cross examined. As such the power under Section 38 of the Consolidation of Holdings Act could not be directed to be exercised suo-motu. The Deputy Director of Consolidation has erred in directing the Consolidation Officer to exercise such power to benefit a party who has failed to prove his claim. Opportunity was given to the Respondent No.3, Raj Narain by the Consolidation Officer and in a long period of ten years he failed to avail the opportunity. Now it cannot be held that opportunity granted repeatedly for ten years is an insufficient opportunity. The decision in the case of Brahm Dev applies to the facts of this case. It would clearly amount to giving the Respondent No.3, Raj Narain a fresh chance to fill in the lacunae in his evidence.

Apart from the above it has also to be seen as to whether the Consolidation Officer and the Settlement Officer Consolidation had in any manner violated the principles of natural justice by closing the doors for the Respondent No.3, Raj Narain when an order to proceed ex-parte was passed against him by the Consolidation Officer on 04.09.2002. The principle of natural justice are now well developed by various pronouncements of the Courts be it in administrative action or in judicial proceedings. In administrative actions opportunity is to be given and it also has to be sufficient opportunity. Once sufficient opportunity has been provided and it is not availed then the principles of natural justice are not violated.

On the other hand in judicial proceedings the litigant has a right to prove his case or disprove the case of the other by his pleadings or by evidence. For such purpose he is necessarily required to be given opportunity by the Courts. This opportunity to be given by the Courts cannot be confined to only one occasion. For valid reasons the Courts have discretion to give opportunity not only once but even several times. However, judicial proceedings are to conclude some time. They are not to be prolonged due to lethargy of a litigant for several decades involving successive generations of litigants in one proceeding. Therefore the Courts exercise of discretion to grant opportunity after opportunity for a specific purpose in a proceeding cannot be exercised for invalid reasons. Because the exercise of discretion to grant opportunity repeatedly for one specific purpose may at times lead to frustration of the very purpose for which the litigant approaches the Courts with folded hands yearning for justice to be delivered.

In the present case the litigation started some time in 1972. It was still pending before the Consolidation Officer in 1992. For nearly ten years the Court adjourned the proceedings to enable the Respondent No.3, Raj Narain to produce his witness for cross examination by the petitioner. He failed to do so and the Consolidation Officer passed the order on 04.09.2002 to proceed ex-parte against him. An opportunity was given to the Respondent No.3, Raj Narain not once but repeatedly for ten years. It is the pendency of such old cases that is occupying the docket of the subordinate Courts and adding to arrears of cases. Where there has been no violation of any rights of a party in the proceeding but the party has himself not availed the more than sufficient opportunity granted to him then he cannot now after four decades of pendency and one decade of opportunity claim a re-trial by the Trial Court.

The Deputy Director of Consolidation by the impugned order has in effect expanded the very meaning of the word opportunity (in judicial parlance) to unnatural proportions by directing a re-trial only for the reason that the Respondent No.3, Raj Narain who had not produced his witness for cross-examination by the petitioner should be given yet further opportunity to produce the witness. As such the order dated 04.09.2002 passed by the Consolidation Officer did not suffer from any error nor the order dated 26.07.2004 passed by the Consolidation Officer rejecting the recall application of the Respondent No.3, Raj Narain required any interference.

The second reason for remand given by the Deputy Director of Consolidation is for deciding Issue No.3 which the Consolidation Officer had not decided. The Consolidation Officer had found that the owner of the property was not Amar Bahadur and his name was erroneously recorded in the revenue record. Amar Bahadur appeared before the Consolidation Officer and gave his statement on oath. He admitted that his name was erroneously recorded in the revenue record. He also admitted that he had no share in the property of Lal Bahadur. The Respondent No.3, Raj Narain claims through Amar Bahadur on the basis of the will dated 13.10.1974. The will was not proved. When the Respondent No.3, Raj Narain has no right title or interest in the property then the Issue No.3 regarding area of the gata does not arise. At the stage of Consolidation Officer this issue was framed but subsequently there was no dispute on this issue between the petitioner and Amar Bahadur after Amar Bahadur gave his oral evidence and accepted the claim of the petitioner. It was therefore not required to be decided. The Respondent No.3, Raj Narain having no interest in the gatas cannot now claim a remand for getting the Issue No.3 decided. The Deputy Director of Consolidation has therefore erroneously remanded the matter for deciding Issue No.3 at the instance of the Respondent No.3, Raj Narain who has no claim over the property.

For the aforesaid reasons the Deputy Director of Consolidation was not justified in remanding the case to the Consolidation Officer for re-deciding the case. It was in effect a remand order which would have enabled the Respondent No.3 to fill in the lacunae in his evidence. That is not permissible in law as has been laid down in the case of Hamid (Supra) and in the case of Brahma Deo (Supra). All the three reasons given by the Deputy Director of Consolidation for remand are not tenable in law hence the impugned order dated 23.05.2006 passed in Revision No.542/541/543 of 2006 (Krishan Dev Vs. Raj Narain & others) by the Deputy Director of Consolidation is liable to be set aside.

In view of the reasons given herein above there is no justification for this court to remit the matter to the Deputy Director of Consolidation. Apart from the above these proceedings had started in the year 1972 and now more than 40 years have passed hence also a remand order would be unjustified since the issues between the parties are decided on facts and law. Therefore in view of the findings and in law the claim of the petitioner is allowed and the objection of the Respondent No.3, Raj Narain is rejected.

The impugned order is accordingly set aside. This writ petition is allowed as above. The Civil Misc. (Injunction) Application No.265521 of 2012 filed by the Respondent No.3 is rejected.

There shall be no order as to costs.

Order Date :- 12.04.2013

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