Allahabad High Court
Narottam vs D.D.C. on 17 August, 2023
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:165938
Court No. - 48
Case :- WRIT - B No. - 76 of 1977
Petitioner :- Narottam
Respondent :- D.D.C.
Counsel for Petitioner :- S.K. Singh,A.K. Rai,G.K. Singh,Vishnu Singh
Counsel for Respondent :- Surendra Prasad,Abhitab Ranjan,S.C.,V.K. Singh
Hon'ble Saurabh Shyam Shamshery,J.
Civil Misc. Substitution Application No.4 of 2018
Heard.
This is an application for substituting legal heirs of respondent No.8.
This application is allowed at the risk of counsel for petitioner and he is directed to carry out necessary changes in cause title during the course of day.
Civil Misc. Substitution Application No.5 of 2019
Heard.
This is an application for substituting legal heirs of respondent No.5/4.
This application is allowed at the risk of counsel for petitioner and he is directed to carry out necessary changes in cause title during the course of day.
Civil Misc. Substitution Application No.6 of 2020
Heard.
This is an application for substituting legal heirs of petitioner No.1/2.
This application is allowed and counsel for petitioner is directed to carry out necessary changes in cause title during the course of day.
Order on memo of petition
1. This writ petition is of the year 1977 and is finally decided after a period of almost 46 years.
2. The original petitioners and some contesting respondents have died and their respective legal heirs are on record.
3. Sri Vishnu Singh, learned counsel for petitioner submits that original petitioner has lost at all the three Authorities under U.P. Consolidation of Holdings Act, 1953. He further submits that the case set up by respondents was that they were mortgagee whereas petitioners and their ancestors were mortgagor. It is not under dispute that in the basic year, original contesting respondents were recorded in revenue records which remained continued even till the abolition of zamindari and still thereafter they remained recorded and become Sirdar and legal consequence thereof follows.
4. Learned counsel for petitioner submits that once a mortgagee is always a mortgagee, therefore, respondents can only be a sub-tenant i.e. their rights cannot be better than that of Asami, however, he fairly submits that findings returned by Settlement Officer Consolidation are that petitioners' side become separate at the stage of initial mortgagor 'Babu Nandan', though counsel has tried to dispute it, however, since no document has been placed on record nor any relevant pleadings have been exchanged in this regard, therefore, this ground is not available to petitioner to argue at this stage.
5. Learned counsel further submits that concerned Authority has erroneously placed reliance on Section 22 of North Western Provinces Tenancy Act, 1901, though he further submits that there is no pleadings that he was co-cultivator.
6. Learned counsel further submits that according to law of mortgage, original petitioner has right to enter in the shoes of mortgagor.
7. None appears on behalf of contesting respondents. Sri A.C. Nishad, learned Standing Counsel appears on behalf of State and has supported the impugned orders.
8. It is not under dispute that original petitioners have lost at all three Authorities on facts as well as on law. The attempt of the counsel for petitioner to claim the right of original petitioners, being mortgagor cannot be sustained since there are no pleadings to this effect as well as there is specific finding of Appellate Authority that heirs of original mortgagor were already separated.
9. The Court is also of the view that Revisional Authority has rightly referred and placed reliance on Section 22 of North Western Provinces Tenancy Act, 1901.
10. According to the facts, original petitioner has failed to prove that he was co-tenant on the land in question and that they were together performing agricultural activity.
11. It is well settled law that under writ jurisdiction this Court normally does not interfere with concurrent finding on facts or on law except in a case where findings are perverse or contrary to law, which is not in the case in hand and for that few paragraphs of judgment passed by Supreme Court in the case of Krishnanand (Dead) through legal representatives and others Vs. Deputy Director of Consolidation and others, (2015) 1 SCC 553 would be relevant which are as follows :-
"12. The High Court has committed an error in reversing the findings of fact arrived at by the authorities below in coming to the conclusion that there was a partition. No doubt, the High Court did so in exercise of its jurisdiction under Article 226 of the Constitution. It is a settled law that such a jurisdiction cannot be exercised for reappreciating the evidence and arrival of findings of facts unless the authority which passed the impugned order does not have jurisdiction to render the finding or has acted in excess of its jurisdiction or the finding is patently perverse. In the present case, though the High Court reversed the concurrent findings of the authorities below and came to the opposite conclusion on matter of facts, the High Court did not do so on the ground that the authorities below acted in excess of their jurisdiction or without jurisdiction or that the finding is vitiated by perversity.
13. We are of the view that the High Court ought not to have entered into reappreciation of evidence and reversed the findings of fact arrived at by the three authorities below, especially since the authorities had neither exceeded their jurisdiction nor acted perversely. The High Court has nowhere stated that it was of the view that there is any perversity, much less the High Court failed to demonstrate any such circumstances."
12. As discussed above, this Court does not find any ground to interfere with concurrent finding of all the three Authorities, therefore, this writ petition being sans merit is accordingly, dismissed.
Order Date :- 17.8.2023
P. Pandey
