Jhandu vs The Dy. Director Of Consolidation ...
2013 Latest Caselaw 7259 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 18							         Reserved
 
										A.F.R.
 
Case :- WRIT - B No. - 64232 of 2013
 
Petitioner :- Jhandu 
 
Respondent :- The Dy. Director Of Consolidation And 2 Others
 
Counsel for Petitioner :- R.S. Tripathi, A.P. Tiwari
 
Counsel for Respondent :- C.S.C.,
 

 
Hon'ble Ram Surat Ram (Maurya),J.

1. Heard Sri A.P. Tiwari, for the petitioner.

2. The writ petition has been filed against the orders of Deputy Director of Consolidation dated 09.10.2013 and Consolidation Officer dated 03.05.2010, passed in proceedings under Section 12 of U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act).

3. The dispute relates to the land of chaks 320, 748 and 1177 of village Kurhashahpur, pargana Ujhani, district Budaun. Chaks 320 and 748 were recorded, in the name of Mohkam son of Nekram and Chak 1177 was recorded in the name of Sipattar. The petitioner filed an objection (registered as Case no. 5 of 2009-10) under Section 12 of the Act, for recording his name as an heir of Mohkam and Sipattar, the recorded tenure holders. It has been stated by the petitioner that Mohkam was his real brother and Sipattar was his real uncle (father's brother). Both of them died issue less. The petitioner was their nearest heir under Section 171 of U.P. Act no. 1 of 1951. Thereafter, Mithlesh Babu (respondent-3) also filed an objection under Section 12 of the Act, for recording his name as an heir of Mohkam. It has been stated by respondent-3 that he was son of Mohkam, born to his legally wedded wife Smt. Maya. Sipattar died during life time of Mohkam, as issue less as such his share was jointly inherited by Jhandu and Mohkam. After death of Mohkam, he inherited his share. Both the objections were referred to the Consolidation Officer, where the parties filed written statements of the claims of each other. Subsequently one Objection was filed by Smt. Gango, mother of Mohkam, stating that Mohkam was unmarried and died issue less as such his interest was inherited by her, being his widowed mother.

4. All the objections were consolidated and tried together by Consolidation Officer (respondent-2). The petitioner examined Jhandu, Basoran, Rakshpal and Brijpal as witnesses. Mithlesh Babu examined himself, Satyapal and Thakuri as his witnesses and also filed documentary evidence. Gango examined herself and Raveran as her witnesses. The Consolidation Officer, after hearing the parties, by order dated 03.05.2010, held that all the witnesses of the petitioner admitted that Mohkam was married to Smt. Maya. Even Gango admitted that Maya was living with Mohkam as his concubine. From the Voters' List it was proved that Maya was wife of Mohkam. Satyapal and Thakuri proved that Mithlesh Babu was born to Maya, who was wife of Mohkam. From the school records and statement of the witnesses it was proved that Mithlesh Babu was son of Mohkam and Maya. Thus it was found proved that Mithlesh Babu was legitimate son of Mohkam as such name of Mithlesh Babu was directed to be recorded over the land in dispute as an heir of Mohkam.

5. The petitioner filed an appeal (registered as Appeal no. 197) from the aforesaid order. Gango did not file any appeal. The appeal was heard by Settlement Officer Consolidation, Badaun, who by order dated 09.02.2011 held that although marriage of Mohkam to Maya was proved but as the school records filed by Mithlesh Babu was not proved by the competent authority and Maya, who was the best witness to prove that Mithlesh Babu was born to her during her wedlock with Mohkam, but she was not produced as such the Consolidation Officer committed an error in recording a finding that Mithlesh Babu was son of Mohkam. On these findings, he allowed the appeal and remanded the case to Consolidation Officer for giving opportunity to the parties to lead fresh evidence and decide afresh.

6. Mithlesh Babu filed a revision (registered as Revision No.84/2013-14). The revision was heard by Deputy Director of Consolidation (respondent-1), who by order dated 09.10.2013 held that in the Voters' List of 1992, the name of Maya was recorded as the wife of Mohkam. In the school records, date of birth of Mithlesh Babu was mentioned as 05.06.1994 and his father's name was recorded as Mohkam and from the statements of Satyapal and Thakuri also, it was proved that Mithlesh Babu was son of Mohkam. The Consolidation Officer gave full opportunity of evidence to the parties and remand for fresh evidence was illegal. On these findings, the revision was allowed and the order of Settlement Officer Consolidation, Badaun, dated 09.02.2011 was set aside and order of Consolidation Officer dated 03.05.2010 was reinstated. Hence this writ petition has been filed.

7. The counsel for the petitioner submitted that Deputy Director of Consolidation was exercising the revisional jurisdiction. In case, he was not agreeing with the findings of fact recorded by Settlement Officer, Consolidation, he ought to have remanded the case to Settlement Officer Consolidation for deciding the appeal afresh but he has exceeded his jurisdiction in recording his own findings of facts contrary to the appellate authority. He placed reliance on the judgment of Supreme Court in Gayadeen Vs. Hanuman Prasad, 2001 (92) RD 79 and the judgments of this Court in Wali Mohammad Vs. DDC and others, 2003 (94) RD 614 and Mst. Mahraji Vs. DDC and others, 2009 (106) RD 563. Findings of Deputy Director of Consolidation are based upon misconstruing of the evidence on record. It was not proved from any evidence on record that Mithlesh Babu was the legitimate son of Mohkam as such he was not heir of Mohkam. The petitioner, being the real brother of Mohkam, who died issue less, was his heir. Respondent-1 has not given any reason in his judgment and it is a cryptic order and has been passed without discussing any evidence on record.

8. I have considered the arguments of the counsel for the petitioner and examined the record. Section 48 (1) of the Act, which confers revisional jurisdiction to Deputy Director of Consolidation and Explanation (3) added to it are quoted below:-

Section 48. Revision and Reference:- (1)The Director of Consolidation may call for and examine the record of any case decided or proceedings taken by any subordinate authority for the purposes of satisfying himself as to the regularity of the proceedings; or as to the correctness, legality or propriety of any order other than interlocutory order passed by such authority in the case or proceedings, may after allowing the parties concerned an opportunity of being heard, make such order in the case or proceedings as he thinks fit.

Explanation (3).- The power under this section to examine the correctness, legality or propriety of any order includes the power to examine any finding, whether of fact or law, recorded by any subordinate authority, and also includes the power to re-appreciate any oral or documentary evidence.

9. The scope of jurisdiction under Section 48 of the Act came for consideration before Supreme Court time to time. Supreme Court in Sheo Nand v. Dy. Director of Consolidation, (2000) 3 SCC 103 held that section 48 gives very wide powers to the Deputy Director. It enables him either suo motu on his own motion or on the application of any person to consider the propriety, legality, regularity and correctness of all the proceedings held under the Act and to pass appropriate orders. These powers have been conferred on the Deputy Director in the widest terms so that the claims of the parties under the Act may be effectively adjudicated upon and determined so as to confer finality to the rights of the parties and the revenue records may be prepared accordingly. 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 scrutinize 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 re-evaluate 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.

10. Similar view has been taken by Supreme Court in Sheshmani Vs. DDC and others, 2000 (91) RD 210 and Gulzar Vs. DDC and others, (2009) 12 SCC 590. Due to some contradictory decisions, Explanation (3) has been added by U.P. Act No. 3 of 2002. Thus, the arguments raised by the counsel for the petitioner that in case of disagreement, Deputy Director of Consolidation ought to have remanded the case to Settlement Officer Consolidation is not liable to be accepted.

11. The practice of remand has been deprecated by Supreme Court time to time. Supreme Court in Municipal Corpn., Hyderabad v. Sunder Singh, (2008) 8 SCC 485, held that it is now well settled that before invoking the provision of Order 41 Rule 23 of the Code of Civil Procedure, the conditions precedent laid down therein must be satisfied. It is further well settled that the court should loathe to exercise its power in terms of Order 41 Rule 23 of the Code of Civil Procedure and an order of remand should not be passed routinely. It is not to be exercised by the appellate court only because it finds it difficult to deal with the entire matter. If it does not agree with the decision of the trial court, it has to come with a proper finding of its own. The appellate court cannot shirk its duties.

12. Settlement Officer Consolidation found that marriage of Mohkam to Maya was proved. But as Maya was not examined to prove that Mithlesh Babu was her born due to bedlock with Mohkam as such, the matter was remanded for fresh trial. Mithlesh Babu examined Satyapal and Thakuri and filed his school record. On the basis of these evidence, the Consolidation Officer recorded findings that it was proved that Mithlesh Babu was legitimate son of Mohkam. In the circumstances, the remand was wholly unnecessary and only allowing the parties to fill up the lacuna in their evidence. Respondent-1 has rightly set aside the order of the appellate Court. Finding of facts recorded by respondents-1 and 2 do not suffer from any illegality.

13. In view of the aforesaid discussion, the impugned orders do not suffer from any illegality. The writ petition has no merit and is dismissed.

Order Date :- 03.12.2013

mt