Prakash vs Deputy Director Of ...
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HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

 				Reserved on: 06.12.2022	
 
Delivered on: 04.01.2023
 

 
Case :- WRIT - B No. - 3322 of 2022
 

 
Petitioner :- Prakash Chandra
 
Respondent :- Deputy Director of Consolidation, District- Gautam Budh Nagar & 12 Ors.
 
Counsel for Petitioner :- Saurabh Sachan, Ashwani Kumar Sachan 
 
Counsel for Respondent :-  C.S.C.,Narayan Dutt Shukla,Rituvendra Singh Nagvanshi 
 

 
Hon'ble Siddharth,J. 

Heard Sri Ashwani Kumar Sachan, learned counsel for the petitioner; learned Standing Counsel for respondent Nos. 1, 2 and 14 and Sri R.C. Singh, learned Senior Counsel assisted by Sri Narayan Dutt Shukla for remaining respondents.

This writ petition has been filed praying for quashing of the judgment and order dated 02.09.2022 passed by Deputy Director of Consolidation, Gautam Budh Nagar in revision No. 173 of 2022 and the judgment and order dated 01.04.2022 passed by the Consolidation Officer, Gautam Budh Nagar in Case No. 15 under Section 12 of U.P.C.H. Act.

The petitioner's case is that there is dispute regarding succession of land belonging to Prem Singh alias Premu, situated in Village- Bishnooli, Tehsil- Dadri, District- Gautam Budh Nagar. Before the Consolidation Officer, Gautam Budh Nagar, an objection was filed under Section 12 of the U.P. Consolidation of holdings Act, 1953 (hereinafter referred to as, ''U.P.C.H. Act') by Prakash Chandra, the petitioner, claiming that he is adopted son of Prem Chandra and his wife Smt. Chandro, respondent No.3. He prayed that his name may be mutated in place of Prem Singh in revenue records. Smt. Chandro filed an affidavit dated 10.09.1990 before the Consolidation Officer stating that she has no objection to the mutation of the name of the petitioner in place of her husband in revenue record. The Consolidation Officer by the order dated 30.06.1992 ordered mutation of name of the petitioner, Prakash Chandra, in place of his adopting father Prem Singh. The aforesaid order was not mutated in the revenue record. However, the name of Smt. Chandro Devi wife of Prem Singh was recorded in Khatauni of 1412 fasli to 1416 fasli and entry in paka 11. Smt. Chandro Devi executed a sale deed dated 25.02.2005 in favour of Smt. Shanti Devi wife of Bhup Singh and Bhup Singh son of Tej Singh, predecessors of respondent Nos. 3 to 13. After lapse of about 13 years a restoration application dated 15.04.2005 was filed by Smt. Chandro, respondent No.3, before the Consolidation Officer praying for recalling the order dated 30.06.1992, whereby the name of the petitioner was mutated in revenue record in place of his adopting father, Prem Singh. The petitioner objected to this restoration application on the ground that the aforesaid restoration application was never filed by Smt. Chandro but by some imposter. Smt. Chandro also filed an affidavit before the Consolidation Officer stating that she has not filed any restoration application. The Consolidation Officer allowed the restoration application dated 15.04.2005 by his order dated 04.09.2006 against which revision was preferred by the petitioner before the Deputy Director of Consolidation which was allowed by the order dated 27.11.2007 and the matter was remanded to the Consolidation Officer for deciding the restoration application afresh, after considering the objections of the petitioner. The petitioner instituted an original suit praying for a decree of cancellation of sale deed dated 25.02.2005 allegedly executed by Smt. Chandro in favour of the Bhup Singh and his wife Shanti Devi and the suit was decreed by the judgment and decree dated 09.10.2018 by the civil court. During the pendency of the earlier restoration application of the petitioner the purchasers, Bhup Singh and his wife Shanti Devi, filed another restoration application dated 02.02.2018 praying for recalling the order dated 30.06.1992, the order of mutation in favour of petitioner. The Consolidation Officer by the order dated 08.02.2019 directed the impleadment of Bhup Singh and Smt. Shanti Devi as parties in the restoration application which was challenged by the petitioner before the revisional court but the same was dismissed. Against the same the petitioner preferred Writ-B No. 2439 of 2021 which is still pending. Finally, the Consolidation Officer allowed the restoration application dated 15.04.2005 of the petitioner and deed dated 02.02.2018 of Bhup Singh and Shanti Devi by his order dated 01.04.2022. The petitioner challenged the order dated 01.04.2022 passed by the Consolidation Officer allowing the restoration application before D.D.C. which was dismissed by the order dated 02.09.2022, hence this writ petition before this Court.

The senior counsel for the contesting respondent Nos. 3 to 12 has refused to file counter affidavit to the writ petition and has opposed the writ petition orally.

Learned counsel for the petitioner submitted that the order of remand should not be passed in routine manner. Time and money spent in litigation goes waste in this regard and he has relied upon the judgments of this Court in the cases of Sheikh Natthu and another Vs. D.D.C. Kanpur Camp, Hamirpur and another, 2009 (106) R.D. 96 and Hardeshwar Nath Vs. Nand Lal and another, 2009 (107) R.D. 805. That the restoration application filed by purchasers, Bhup Singh and Shanti Devi, on 02.02.2018 was allowed after lapse of 26 years without making any application under Section 5 of the Limitation Act. The thumb impression of Smt. Chandro Devi was not got examined by expert by the Consolidation Officer since the restoration application purportedly filed by her on 15.04.2005 did not had her thumb impression. By the impugned orders the issue of adoption has been opened for decision which is not permissible. The registration of adoption deed is not mandatory under Section 16 of the Adoption and Maintenance Act, 1956. Respondent Nos. 4 to 13 have no locus to challenge the adoption of petitioner. The adopting mother, Smt. Chandro Devi, is still alive to prove the same before the Consolidation Officer.

The senior counsel for the contesting respondents has submitted that the present petition is directed against interlocutory order. The objection under Section 12 is yet to be heard and decided on merits even after lapse of 40 years. The decree of the civil court cancelling the sale deed in favour of purchasers from Smt. Chandro Devi has been stayed in first appeal. The date of adoption has not been disclosed by the petitioner nor there is any adoption deed with effect from 01.01.1977, adoption can only be made by a registered deed. He has relied upon number of judgments in this regard.

After hearing the rival contentions, this Court finds that when the objections were filed under Section 12 (1) of U.P.C.H. Act by the petitioner claiming himself to be adopted son of Prem Singh and Smt. Chandro Devi, he filed an affidavit of Smt. Chandro Devi in support of his objections but she did not appeared as a witness before the Consolidation Officer to prove the adoption of the petitioner by Prem Singh and Smt. Chandro Devi. Statements of Vishnu Dutt, Mitthan Lal, Sukhram and the petitioner himself was recorded before the Consolidation Officer but not the statement of Smt. Chandro Devi. Smt. Chandro Devi filed the restoration/recall application duly supported by her affidavit which was objected by the petitioner. On 30.05.2005 Smt. Chandro Devi filed her affidavit stating that she has not filed any application for recall of the order dated 30.06.1992 of the Consolidation Officer. The petitioner made an application dated 17.01.2006 praying that report from finger print expert may be called for ascertaining whether the thumb impressions on the restoration/recall application dated 15.04.2005 and the accompanying affidavit dated 06.06.2005 are of Smt. Chandro Devi or not but no order was passed on his application. The Consolidation Officer by his order dated 04.09.2006 rejected the restoration/recall application but the Revisional Court remanded the matter to the Consolidation Officer for hearing afresh by his order dated 27.11.2007. Thereafter further proceedings as stated above took place, but the fact remains that Smt. Chandro never appeared before the Court for recording of her statement. Only her affidavits were filed before the Consolidation Officer at different stages. The contention of the counsel for the respondent that the adoption of the petitioner was not legal goes to the root of the dispute between the parties. None of the courts have applied their mind to the state amendment to Section 16 of the Hindu Adoption and Maintenance Act which is as follows :-

State Amendment Uttar Pradesh Section 16 renumbered as Sub-Section (1) thereof and after sub-section (1) as so renumbered, the following sub-section (2) shall be inserted, namely :-

"(2) In case of an adoption made on or after the 1st day of January, 1977 no Court in Uttar Pradesh shall accept any evidence in proof of the giving and taking of the child in adoption, except a document recording an adoption, made and signed by the person giving and the person taking the child in adoption, and registered under any law for the time being in force : Provided that secondary evidence of such document shall be admissible in the circumstances and the manner laid down in the Indian Evidence Act, 1972."

The aforesaid amendment clearly provides that no court shall accept any evidence proving due adoption of a child except a registered document proving taking of the child in adoption. There is no document or date of adoption on record. None of the witnesses of the petitioners have proved on which date the petitioner was adopted. There is another aspect which has not been considered by any of the courts. As per Section 10 of the Hindu Adoption and Maintenance Act, 1956, no person who is above 15 years of age can be taken in adoption. The only exception is the custom or usage applicable to the parties which permits taking into adoption a person who has completed 15 years of age. In the present case no custom or usage was proved before the Consolidation Officer which permits adoption of a person above 15 years of age. Before the Consolidation Officer the petitioner stated that he is aged about 26 years at the time of recording of his statement on 10.07.1991. In the affidavit dated 10.09.1990 of Smt. Chandro Devi she has stated that she has adopted the petitioner about 12 years ago when her husband, Prem Singh, was alive. 12 years period prior to 10.09.1990 comes to about 1977-1978 and not prior to 01.01.1977. Therefore, the adoption of the petitioner does not appears to be in accordance with the U.P. Amendment to Section 16 of the Hindu Adoption and Maintenance Act. The order of Deputy Director of Consolidation, Gautam Budh Nagar, remanding the matter is not correct. He could have decided the issue of adoption of the petitioner himself instead of remanding the matter to the Consolidation Officer again. There have been many rounds of litigations between the parties and further remand was not justified.

The impugned order dated 02.09. 2022 passed by Deputy Director of Consolidation, Gautam Budh Nagar, in Case No. 173 of 2022 is hereby quashed. Deputy Director of Consolidation is directed to decide the dispute between the parties afresh keeping in view the legal provisions stated hereinabove within a period of six weeks from the date of production of certified copy of this order. The decision taken by the Deputy Director of Consolidation aforesaid shall be sent to Registrar (compliance) of this court before 15 March, 2023. The petitioner shall file copy of this order before D.D.C. aforesaid within a period of one weeks from today, who will decide the revision again without being influenced by the observations made in this judgment.

The writ petition is allowed. No order as to costs.

Order Date :- 04.01.2023

Abhishek Yadav