Mangal Sen And Another vs Deputy Director Of Consolidation ...
2023 Latest Caselaw 1999 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 5
 

 
Case :- WRIT - B No. - 3417 of 2022
 

 
Petitioner :- Mangal Sen And Another
 
Respondent :- Deputy Director Of Consolidation And 6 Others
 
Counsel for Petitioner :- Indrasen Singh Tomar
 
Counsel for Respondent :- C.S.C.,Brajesh Shukla,Krishna Gopal,Sher Bahadur Singh
 

 
Hon'ble Dinesh Pathak,J.

1. Heard learned counsel for the petitioners, learned Standing Counsel representing respondent nos. 1 to 3, learned counsel for the respondent nos. 4 and 5, learned counsel for the caveator-respondent no.6 as well as learned counsel for the Gaon Sabha (respondent no. 7) and perused the record.

2. In view of the peculiar facts and circumstances of the case and the order proposed to be passed hereunder, this Court proceeds to decide the instant writ petition finally at the admission stage with the consent of the counsel for the parties present without calling for their respective affidavits in the present writ petition (counter affidavit and rejoinder affidavit).

3. By way of filing the instant writ petition, the petitioners have invoked the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India assailing the remand order dated 18.08.2022 passed by the Deputy Director of Consolidation in revision no. 0097 of 2017 setting aside the order dated 09.10.2019 passed by the Settlement Officer of Consolidation in appeal arising out of order dated 20.06.2016 passed by the Consolidation Officer in proceeding under Section 9-A(2) of U.P. Consolidation of Holdings Act (in brevity "U.P.C.H. Act").

4. Facts culled out from the averment made in the writ petition are that the property in question basically belongs to one Jhau Ram, who had two sons, namely, Ram Dayal and Mool Chand. Smt. Prema (predecessor in the interest of contesting respondents) was the real sister of Jhau, therefore, there were three claimants over the property in question namely Ram Dayal, Mool Chand and Smt. Prema. It is case of the petitioners that in the family settlement 1/3 share has been given to Smt. Prema, therefore, contesting respondents cannot claim more than 1/3 share in the property in question which basically belongs to Jhau. Present petitioners are claiming their right and title on the basis of registered will deed dated 22.09.1978 said to have been executed by Ram Dayal. It is case of the petitioners that after death of Mool Chand his share devolved upon Ram Dayal, therefore, 2/3 share belongs to the petitioners and 1/3 share belongs to contesting respondents. The Settlement Officer of Consolidation, vide order dated 18.06.2004, has remanded the matter before the Consolidation Officer to decide the case afresh. After remand, the Consolidation Officer has passed fresh order dated 20.06.2016, by which 2/3 share has been given to the petitioners and 1/3 share has been given to the contesting respondents. Having been aggrieved against the order passed by the Consolidation Officer, respondents have preferred an appeal. The Settlement Officer of Consolidation, vide order dated 9.10.2017, has dismissed the appeal affirming the order passed by the Consolidation Officer. The Deputy Director of Consolidation, on revision being filed on behalf of the contesting respondents, has allowed the same and remanded the matter before the Consolidation Officer again to decide the case afresh. Having been aggrieved, instant writ petition has been filed against the remand order dated 18.08.2022 passed by the Deputy Director of Consolidation.

5. It is submitted by the counsel for the petitioners that entire evidence was available on record, therefore, there was no occasion for remand before the Consolidation Officer and the Deputy Director of Consolidation is competent enough to decide the revision in exercise of its power under Section 48 of U.P.C.H. Act. It is further submitted that validity of the will deed has already been upheld by the civil court in Civil Appeal No. 48 of 2016 along with Cross Objection No. Nil of 2016, decided by the Additional District Judge, Court No. 5, Bareilly vide judgment dated 01.03.2017. It is further submitted that there is no case of any party that effective opportunity of hearing had not been afforded to the parties before passing the order by the court subordinate. Therefore, remanding the matter second time before Consolidation Officer to decide it afresh, after giving an opportunity to adduce evidence, is not justifiable in the eye of law. It is further submitted that the sequence of the death of Ram Dayal and Mool Chand was never disputed by any party, therefore, there was no occasion to remand the matter on this issue. It is next submitted that the order impugned passed by the Deputy Director of Consolidation is illegal and unwarranted under the law, therefore, same is liable to be quashed. In support of his case, he has cited case of Chandrama vs. Deputy Director of Consolidation and others, reported in 2017(134) R.D. 555 and Sheo Nand and others vs. Deputy Director of Consolidation and others, reported in 2000 (3) SCC 103.

6. Per contra, learned counsel for the private respondents has contended that the will deed dated 22.09.1978 has not properly been proved and the original copy of the will has not been adduced before the court. Sequence of death of Ram Dayal and Mool Chand has not been decided by the courts below, therefore, the Deputy Director of Consolidation has rightly remanded the matter before the Consolidation Officer to decide the case afresh after taking evidence of the parties. It is further contended that the instant writ petition is liable to be dismissed being misconceived and devoid of merits.

7. Having considered the rival submissions advanced by the counsel for the parties and perusal of record, it reveals that the petitioners are claiming their right and title over the property in question on the basis of the registered will deed dated 22.09.1978 to the extent of 2/3 share and averred that contesting respondents are having only 1/3 share in the property in question being descendants of Smt. Prema. The contesting respondents have contested the matter claiming more than 1/3 share. In pursuance of the order dated 18.06.2004 passed by the Settlement Officer of Consolidation, fresh order has been passed by the Consolidation Officer acknowledging 2/3 share of the petitioners and 1/3 share of the respondents in the property in question. The Deputy Director of Consolidation has remitted the matter before Consolidation Officer citing two reasons; first is that the original copy of the registered will deed dated 22.09.1978 has not been adduced and will was not proved by the marginal witnesses and second is that sequence of death of Ram Dayal and Mool Chand has not been decided, therefore, share of Mool Chand has illegally been given to the present petitioners.

8. So far as the validity of the registered will deed is concerned, the Settlement Officer of Consolidation has given a categorical finding that the original copy of the will was adduced before the civil court. There is no case of the respondents that the will deed is forged document and the petitioners are not entitled for the property in question on the basis of said will deed. The scriber of the will deed has filed his affidavit, which was un-controverted. The judgment dated 01.03.2017 passed by the Additional District Judge, Court No. 5, Bareilly was also on the record, which has been considered by the Settlement Officer of Consolidation. Learned Additional District Judge, in deciding Civil Appeal No. 48 of 2016 along with Cross Objection No. Nil of 2016, has acknowledged the right and title of the petitioners over the property in question on the basis of the registered will deed dated 22.09.1978. The Deputy Director of Consolidation has miserably failed to consider this aspect of the matter.

9. So far as the sequence of death of Ram Dayal and Mool Chand is concerned, it is apposite to mention that this question has never been raised before the courts below while the case was already remanded vide order dated 18.06.2004 passed by the Settlement Officer of Consolidation. There is no case of any party that no effective and proper opportunity of hearing had been afforded to them before the courts below to prove their case. At this juncture, second time remand made by the Deputy Director of Consolidation amounts second round litigation by which entire case has been reopened with respect to the right and title of the parties over the property in question and fresh opportunity has been ordered to be afforded to the parties to adduce their fresh evidences to prove the will deed and the sequence of death of Ram Dayal and Mool Chand.

10. I do not find any justification in the second time remand of the case before trial court (Consolidation Officer) for adducing fresh evidences. The Deputy Director of Consolidation should have decided the case on the basis of the evidences, which have been adduced by the parties and already on record, being the court of fact and law. He is competent enough to decide the revision in exercise of his power under Section 48 of U.P.C.H. Act. By relegating the parties before the Consolidation Officer he has miserably failed to exercise his jurisdiction so vested in him by law. Explanation- (3) to Section 48 of U.P. C.H. Act gives immense power to the Deputy Director of Consolidation to examine the correctness, legality or propriety of any order passed by the court subordinate. Apart from that, the Deputy Director of Consolidation is empowered as well to examine any finding whether on facts or law recorded by subordinate court and also includes the power of re-appreciation of any oral or documentary evidence available on record. It would not be out of context to cite the provision as enunciated under Section 44-A of U.P.C.H. Act, by which any superior authority can exercise such powers and duties which are expected to be performed by any subordinate authority under this Act or Rules made thereunder. Conjoint reading of Sections 44 and 48 of U.P.C.H. Act connotes that Deputy Director of Consolidation has immense power to re-appreciate the evidence on record and also to examine the correctness or propriety of the judgment of subordinate court with respect to the facts of the case.

11. In this conspectus, as above, I am of the considered view that the Deputy Director of Consolidation is not justified in remanding the matter before the Consolidation Officer to decide the same afresh, whereas since 1984 parties are litigating with respect to the property in question and once they have already been relegated before the court subordinate by the order passed by the Settlement Officer of Consolidation. Repetitive relegation of parties before the Consolidation Officer would protract the litigation and, in my opinion, would be initiation of second round litigation, which is not sustainable in the eye of law. The Deputy Director of Consolidation is competent enough to decide the revision on merit by examining the facts and law relating to the case in exercise of its supervisory jurisdiction under Section 48 of U.P.C.H. Act reading with Section 44 of U.P.C.H. Act and the rules framed thereunder.

12 As such, instant writ petition succeeds and is allowed. Impugned order dated 18.08.2022 passed by the Deputy Director of Consolidation is hereby quashed and the revision before the Deputy Director of Consolidation is restored to its original number. The parties are relegated before the Deputy Director of Consolidation with a direction that the revision should be decided on merits afresh in accordance with law, as discussed above, after giving effective opportunity of hearing to the parties.

13. It is expected that the Deputy Director of Consolidation shall make an endeavour to decide the revision expeditiously, preferably within a period of three months from the date of production of a certified copy of this order. Both the parties are directed to appear before the Deputy Director of Consolidation on 06.02.2023.

Order Date :- 19.1.2023

Pkb/