Bachoo vs D.D.C. And Others
2021 Latest Caselaw 8478 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 19
 
Case :- CONSOLIDATION No. - 6427 of 1985
 
Petitioner :- Bachoo
 
Respondent :- D.D.C. And Others
 
Counsel for Petitioner :- Prem Chandra,Manendra Nath Rai,Mubin Ahmad,Pankaj Kumar Srivastava,Shiv Sharan Lal Maurya,Vinay Kumar Singh
 
Counsel for Respondent :- C.S.C.,Arun Kumar Shukla,Arun Kumar Verma,Vikrant Chaudhary
 
				
 
Hon'ble Jaspreet Singh,J.

1. Heard learned counsel for the petitioner and Sri Arun Kumar Shukla, learned counsel for the private respondents as well as the learned Additional Chief Standing Counsel for the State-respondents.

2. The instant petition was dismissed for want of prosecution on 28.03.2019. Prior to the aforesaid dismissal, the petitioner as well as the respondent nos. 2 and 3 have died for which the petitioners had moved an application, bearing C.M.A. No. 66804 of 2008 along with delay condonation application bearing C.M.A. No. 66806 of 2008 & C.M.A. No. 66808 of 2008 for setting aside abatement, seeking the substitution of the legal heirs of the deceased petitioner as well respondent nos. 2 and 3.

3. The application for recall bearing C.M.A. No. 151678 of 2019 is also accompanied by an application seeking the condonation of delay, bearing C.M.A. No. 151676 of 2019. It appears that an application bearing C.M.A. No. 151677 of 2019 has been moved for abatement.

4. The counsel for the private respondents have filed his objections against the application for substitution along with covering application bearing C.M.A. No. 29815 of 2015.

5. The learned counsel for the private respondents have also filed objections against the Recall Application along with the covering application bearing C.M.A. No. 2305 of 2021.

6. The Court has heard the learned counsel for the parties on the aforesaid applications. The ground shown in the application for recall is found sufficient.

7. Accordingly, the writ petition is restored to its original number.

8. The Court has also considered the application for substituting the legal heirs of the petitioner and the respondent nos. 2 and 3 and the ground shown is found sufficient.

9. The applications are allowed. The abatement is set aside and the delay in filing the same is also condoned.

10. The learned counsel for the petitioner shall carry out the necessary amendments in the memo of petition during the course of the day.

Order on petition.

11. The Court has thereafter proceeded to hear the aforesaid writ petition on merits.

12. That the instant petition had been preferred by Sri Bacchu who is the successor in interest of Mst. Phoola. Bacchu died during the pendency of the aforesaid writ petition and is now represented by his legal heirs. Under challenge is the order passed by the DDC, Kheri in Revision No. 674 of 1977 dated 07.05.1985 whereby the DDC has allowed the revision preferred by Sukkhan and Kallu, the original respondent nos. 2 and 3 (who also died during the pendency of the aforesaid writ petition and are now represented by their successors-in-interest). As a result, the decision of the Consolidation Officer as well as the SOC have been set aside rejecting the claim of the Mst. Phoola and the claim of the private respondent nos. 2 and 3 has been accepted.

13. In order to appreciate the controversy involved in the instant petition, certain brief facts giving rise to the petition are being noticed first and for the sake of convenience, the parties are referred to as they were impleaded before the Consolidation Courts.

14. The issue pertains to Khata No. 436 which was recorded in the name of respondent nos. 2 and 3 in the basic year. Mst. Phoola had filed her objections under Section 9-A (2) of the Consolidation of Holdings Act, 1953 claiming that the land in question belonged to her brother namely Sri Bhagwan. Upon his death, the property was recorded in the name of his widow namely Sri Mahadei and upon her death Mst. Phoola being the sole legal representative had inherited the property and the private respondents nos. 2 and 3 had no concern with the said property and their names have been incorrectly recorded in the records.

15. It was the specific case that the property initially was created by Sri Ori who had settled with his in-laws. Upon the death of Bhagwan and thereafter his wife, Mst. Phoola the daughter of Ori and sister of Bhagwan was the legal representative who had inherited the property, hence, she had claimed her rights.

16. The private respondents nos. 2 and 3 contested the aforesaid claim before the Consolidation Officer and the C.O. framed three issues. After considering the oral as well as documentary evidence filed by the respective parties, it allowed the contention of Mst. Phoola and her name was directed to be recorded in respect of Khata No. 436 in Gram Ganeshpur, Pargana-Firozabad, District Kheri vide judgment dated 13.05.1976. The private respondents nos. 2 and 3 preferred an appeal under Section 11 of the U.P.C.H. Act, 1953 being aggrieved against the order passed by the Consolidation Officer dated 13.05.1976.

17. The aforesaid appeal was registered as Appeal No. 296/1734. The SOC also considering the evidence as well as the contention of the respective parties upheld the order passed by the C.O. and dismissed the appeal by means of his judgment dated 26.07.1977.

18. The private respondent nos. 2 and 3 thereafter preferred a Revision dated 674 of 1977 which has been allowed by the DDC, Kheri by means of his judgment dated 05.07.1985 and this order is under challenge in the instant petition.

19. The learned counsel for the petitioner while assailing the impugned order dated 05.07.1985 has urged that the Revisional Authority has committed an error in ignoring the documentary evidence filed by the petitioner which indicated that the claim of the private respondent nos. 2 and 3 was fraudulent.

20. It is urged that the private respondent nos. 2 and 3 in respect of another property situate in Gram Chandrahas Kalan and relating to Khata No. 131 had claimed co-tenancy rights in the said property indicating their parentage as being sons of Shiv Charan son of Sri Tilak though while claiming the property in respect of Gram Ganeshpur, they have surreptitiously claimed to be the grand sons of Ori.

21. Despite ample documentary evidence having been placed on record along with the oral evidence which established the falsity of the claim of the private respondent nos. 2 and 3, the same has been conveniently ignored by the DDC while passing the impugned order and the two orders passed by the CO and the SOC which is based on the proper appreciation of evidence has been set aside without even meeting with the reasons recorded by the two courts, hence, interference in finding of fact by the Revisional Authority without any justification and cogent grounds has rendered the impugned order susceptible to judicial interference.

22. The counsel for the private respondent nos. 2 and 3 while refuting the aforesaid arguments has submitted that since the objections were filed initially by Mst. Phoola, it was incumbent upon her to have established the pedigree as set up by her. It has been submitted that Mst. Phoola and her witnesses could not establish that Mst. Phoola was the daughter of Ori. It has been submitted that in fact Mst. Phoola was the sister of Ori. Ori had two sons namely Bhagwan Din and Shiv Charan. After the death of Bhagwan Deen and Shiv Charan, the property devolved on Mahadei and upon her death the property was inherited by the private respondents nos. 2 and 3. The aforesaid entries remained on record and Mst. Phoola was in no way concerned with the property in question and her objections were wrongly entertained. The evidence was rightly appreciated by the DDC who set aside the orders passed by the C.O. and SOC, hence, these being findings of fact are not liable to be interfered with in exercise of writ jurisdiction and the writ petition deserves to be dismissed.

23. The Court has heard learned counsel for the parties and also perused the record.

24. The record indicates that notices were issued to the private respondent nos. 2 and 3 by means of order dated 03.12.1985. The record further indicates that the service of summons were issued to the private respondent nos. 2 and 3, however, on account of certain deficiencies, the aforesaid steps could not be sent, however, once again by means of order dated 11.09.2008 fresh steps were taken for service on the private respondents nos. 2 and 3. Subsequently, Sri Arun Kumar Shukla, Avocate had filed the vakalatnama on behalf of the private respondent nos. 2 and 3, subsequently, the writ petition was dismissed for want of prosecution. Thereafter it was restored and Sri Arun Kumar Verma, Advocate has filed his vakalatnama on behalf of the private respondent nos. 2 and 3.

25. As already noticed above, the original petitioner Bacchu and the original respondent nos. 2 and 3 namely Sukkhan and Kallu had died during the pendency and their application for substitution was moved. The said applications have been allowed by the instant order on the applications and thereafter considering that the petition is of the year 1985 and with the consent of learned counsel for the parties, the matter has been heard finally.

26. The core issue involved in the instant petition relates to as to whether Mst. Phoola is the sister of Bhagwan and daughter of Sri Ori as claimed by her or the private respondent nos. 2 and 3 are the sons of Shiv Charan and the grand sons of Sri Ori as stated by him.

27. It is in the aforesaid backdrop that the Consolidation Officer while dealing with the controversy had framed three issues. Before the Consolidation Officer, Mst. Phoola examined herself as well as two other witnesses namely Asha Ram Son of Sukkhan and Subrati Son of Abdulla. She also filed documentary evidence in respect of some proceedings relating to Khata no. 131 situate in Gram Chandrahas Kalan which was contested by Mohan Lal and Nand Lal sons of Tilak wherein the private respondents nos. 2 and 3 claimed their co-tenancy rights.

28. On the strength of the aforesaid oral deposition and documentary evidence, it is urged that Sri Ori had acquired the property while he had settled with his in-laws. He had a son namely Bhagwan and two daughters. One of the daughters was married in Khamariha and the other was Mst. Phoola.

29. Thus, the contention throughout has been that Mst. Phoola was the daughter of Sri Ori and sister of Bhagwan Deen and she was a preferential heirs in terms of succession to the property of Bhagwan Deen.

30. It was also stated that the private respondents nos. 2 and 3 were the sons of Shiv Charan son of Tilak and thus the private respondents nos. 2 and 3 were the grand-children of Tilak and not of Sri Ori. It was also urged that Sri Ori, Tilak and Ram Deen were three real brothers while private respondents nos. 2 and 3 belonged to the branch of Tilak whereas the petitioners are from the branch of Ori and as such one has no connection with the other branch.

31. The Consolidation Officer has meticulously considered the evidence of the witnesses as well as the documentary evidence filed before it. It is specifically noted that on behalf of the private respondent nos. 2 and 3 Sri Sukhan appeared as a witness. Sri Sukhan in his statement recorded on 24.08.1974 admitted that Sri Ori, Tilak and Ram Deen were three brothers. During his cross-examination, he made certain statements which were contrary to his own case. He stated that at the time of death of Bhagwan Deen, he was around 25 years of age and age of Mst. Phoola was stated to be 35 years.

32. On the other hand, he has stated that the difference of age between Ori and Mst. Phoola was 35 to 36 years. This has been considered by the Consolidation Officer and it has been found that the age difference as indicated gives a stronger probability that Mst. Phoola was the daughter of Ori and sister of Bhagwan Deen and not the sister of Ori. He also admitted having got the share in the land of Gram Chandrahas Kalan and he stated that the same belonged to his ancestors. He further stated that Tilak and Ori were not real brothers rather were related through ancestors. He further admitted that the names of Tilak's son was Angney and Nand Lal.

33. In so far as the question relating to relationship of Ori could not be answered by the said witnesses. On a subsequent date while the said witness was again cross-examined. The Consolidation Officer noted that the said witness was making incorrect statements, inasmuch as, on earlier occasions he had stated that he had no knowledge regarding Nand Lal and on subsequent dates, he had answered questions relating to Nand Lal quite promptly. The Consolidation Officer also noticed that earlier he had denied the existence of the property at Chandrahas Kalan and later he admitted that the property was in existence and that he had also claimed a share therein.

34. The Consolidation Officer had also taken note of the documentary evidence filed by Mst. Phoola which included the copy of the appeal which was filed through the counsel on 17.09.1974. In the said appeal, a compromise which was arrived at between the parties to the dispute relating to the property situated in Gram Chandrahas Kalan dated 26.08.1974 was called in question.

35. From the perusal of the aforesaid documents, it indicated that it related to the Khata no. 131 of Gram Chandrahas Kalan which was in the names of Mohan Lal and Nand Lal son of Tilak. The private respondents nos. 2 and 3 had claimed co-tenancy rights therein and the sons of Nand Lal and private respondents nos. 2 and 3 entered in an compromise wherein it was indicated that Tilak had four sons namely, Nand Lal, Shiv Charan, (father of the private respondent nos. 2 and 3), Mohan Lal and Anganey. Anganey had no issues and Nand Lal was survived by his son Bankey and Mohan was survived by his son Mulahye and thus the private respondent nos. 2 and 3 along Mulahey were recorded as co-tenants and their rights were partitioned by metes and bounds.

36. The Consolidation Officer also noted that in order to grab the property of Mst. Phoola surreptitiously the appeal was filed wherein the private respondent nos. 2 and 3 tried to get their parentage corrected so that they could claim the property of Gram Ganeshpur as well. This was necessary since Sukhan had already deposed in the proceedings before the Consolidation Officer relating to the property of Ganeshpur. Despite the aforesaid, the private respondent nos. 2 and 3 could not indicate by cogent reasons any documentary evidence to indicate that they were the sons of Shiv Charan Son of Ori rather the evidence indicated that they were the sons of Shiv Charan son of Tilak.

37. Noticing the aforesaid, the C.O. concluded that the names of the private respondent nos. 2 and 3 was incorrectly recorded in respect of a property pertaining to Khata No. 436 situate in Gram Ganeshpur and thus by mean of judgment dated 13.0.1976, it directed the same to be recorded in the name of Mst. Phoola.

38. The SOC also taking note of the detailed evidence filed has affirmed the findings of the C.O.

39. From the perusal of the impugned order dated 05.07.1985, it would indicate that the DDC has not taken note of the documentary evidence which was filed by the Mst. Phoola before the two Courts below which was relating to the rights claimed by the private respondent nos. 2 and 3 relating to the property of Khata No.131 situate in Gram Chandrahas Kalan. The entire attempt of the DDC has been to pick out the deficiencies in the statement of Mst. Phoola and her two witnesses, however, it has not noticed the fact that the documentary evidence which was filed by Mst. Phoola remained un-impeached, inasmuch as, there was nothing on record to rebut the same nor the private respondent nos. 2 and 3 made any statement to belie the said documents.

40. Another fact which needs to be noticed and has been taken note of by the SOC is that Sukkhan had admitted that apart from the disputed property his father Shiv Charan had about 14-15 Bighas of land which was acquired by his father by sale deed. Despite the same, no evidence of such nature was filed by the private respondent nos. 2 and 2 nor any attempt was made to bring on record the Kutumb Register to indicate that the private respondent nos. 2 and 3 were the sons of Shiv Charan son of Ori.

41. Thus, the best evidence which could have been available with the respondent nos. 2 and 3 was not brought on record. On the other hand, the petitioner had brought on record the documents wherein it was indicated that the private respondents nos. 2 and 3 had claimed rights in the property situate in Gram Chandrahas Kalan indicating themselves to be the sons of Shiv Charan son of Tilak. Neither any witness was produced from the family who could have substantiated the aforesaid facts.

42. Thus, what this Court finds is that it was a case where the respective parties were required to establish its own pedigree. The two Authorities i.e. the C.O. and the SOC after noticing the evidence both oral and documentary evidence had recorded findings of fact which is borne out from the evidence. The DDC has reversed the same while ignoring the documentary evidence as well as it has also not taken note of the discrepancies as well contradictions in the statement of Sukkhan, the private respondent nos. 2.

43. Usually, the findings of fact recorded by the C.O. and the SOC are accepted and unless and until it can be shown that the view taken by the two Authorities is erroneous or suffers from perversity, usually such findings are not interfered with by the DDC in its revisional jurisdiction.

44. Though by means of explanation (3) appended to Section 48 of the Uttar Pradesh Consolidation of Holdings Act, 1953, Revisional Court has been conferred with powers to examine any finding whether of fact or law recorded by any Subordinate Authority and it also includes the power to re-appreciate any oral or documentary evidence but the fact remains that the interference can be made only if the findings recorded are illegal, irregular, or are perverse.

45. At this stage, it will be relevant to notice the scope of Section 48 of the Uttar Pradesh Consolidation of Holdings Act, 1953 after its amendment and in this regard the observations made by the Apex Court in the case of Sheshmani and Another Vs. Deputy Director of Consolidation, District Basti, U.P. and Others reported in 2000 (2) SCC 523 are worth noticing. In paragraph nos. 5 and 6 of the said report, it has been held as under:-

".....5. The scope of Section 48 after its amendment in 1963 again came up for consideration by this Court in Ram Dular v. Dy. Director of Consolidation [1994 Supp (2) SCC 198] . Now this section reads as under:

46. "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 purpose of satisfying himself as to the regularity of the proceedings; or as to the correctness, legality or propriety of any order other than an 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."

6. Again the question arose as to whether the Deputy Director of Consolidation was legally justified in upsetting the findings recorded by the Consolidation Officer and the Settlement Officer. The Court said that while exercising the revisional powers under Section 48 what was required to be seen was whether the Deputy Director had considered the questions in its proper perspective or had ignored any material findings on record in coming to a particular finding. The Court said: (SCC p. 200, para 3)

"It is clear that the Director had power to satisfy himself as to the legality of the proceedings or as to the correctness of the proceedings or correctness, legality or propriety of any order other than interlocutory order passed by the authorities under the Act. But in considering the correctness, legality or propriety of the order or correctness of the proceedings or regularity thereof it cannot assume to itself the jurisdiction of the original authority as a fact-finding authority by appreciating for itself of those facts de novo. It has to consider whether the legally admissible evidence had not been considered by the authorities in recording a finding of fact or law or the conclusion reached by it is based on no evidence, any patent illegality or impropriety had been committed or there was any procedural irregularity, which goes to the root of the matter, had been committed in recording the order or finding."

47. Another decision on point is the case of Lal Singh and Another Vs. D.D.C. and Others reported in 2002 SCC Online All 1874. In paragraph 8 of the aforesaid report, it has held as under:-

".......8. The scope of the aforesaid section has been considered by the Apex Court in the case of Gaya Din (D) through LRs. v. Hanuman Prasad (D) through LRs. (supra) in which the Apex Court was pleased to rule as under:

"9. There can be no doubt that under amended section 48 of the Consolidation Act, the revisional power of the Director of Consolidation is not confined to errors of jurisdiction as was the position under the unamended provision. The power of the revisional authority now extends to satisfying himself as to the regularity, correctness, legality or propriety of any order other than an interlocutory order. It is well settled that conceptually the powers of a revisional authority, even if couched in wide language, cannot be equated with the powers of an appellate authority.

10. The scope of the powers of the Deputy. Director under the amended provision came up for consideration of this Court in Ram Dular v. The Deputy Director of Consolidation, Jaunpur [1994 RD 290 (SC).] . It was observed that in considering the correctness, legality or propriety of the order or correctness of the proceedings or regularity under section 48 of the Consolidation Act, the Deputy Director of Consolidation could not assume the jurisdiction of the original authority as a fact-finding authority by appreciating for himself of those facts de novo: he had to consider whether the legally admissible evidence had been considered by the authorities in recording a finding of fact or law or the conclusion reached by them was based on evidence or any patent illegality or impropriety had been committed or there was any/procedural irregularity which would go to the root of the matter. That judgment was relied on in a recent judgment of this Court in Seshmani v. Deputy Director of Consolidation, District Basti, U.P. [2000 (91) RD 210 (SC).] .

13. Thus, it is clear that notwithstanding the fact that section 48 has been couched in wide terms, it only permits interference where the findings of the subordinate authority are perverse in the sense that they are not supported by the evidence brought on record or they are against the law or where they suffer from the vice of procedural irregularity."

48. Once the two Courts have recorded a findings of fact upon appreciation of evidence and the findings so recorded is based on material on record, this Court is of the opinion that the DDC was not justified in reversing the said findings by setting aside the orders passed by the CO and SOC even without meeting with the reasons recorded by the two Courts as well as by ignoring the documentary evidence which as noticed above which could not be explained by the private respondent nos. 2 and 3 by filing any evidence in rebuttal.

49. In view of the aforesaid discussions, this Court is of the view that the DDC by passing the impugned order dated 05.07.1985 has transgressed its jurisdiction and by interfering with the findings of fact based on proper appreciation of evidence, hence, the impugned order deserves to be set aside.

50. In light of the above, the writ petition succeeds, the impugned order dated 05.07.1985 is set aside and quashed. Consequences to follow. In the facts and circumstances, there shall be no order as to costs.

(Jaspreet Singh, J.)

Order Date :- 23.07.2021

Asheesh/-