Allahabad High Court
Kali Prasad vs The Deputy Director Of Consolidation ... on 12 September, 2023
Author: Saurabh Shyam Shamshery
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2023:AHC:176824 Reserved On : 28.08.2023 Delivered On : 12.09.2023 HIGH COURT OF JUDICATURE AT ALLAHABAD *** Court No. 48 Case:- WRIT - B No. - 3282 of 1974 Kali Prasad ......... Petitioner Through:- Sri Sachida Nand Tripathi, Advocate Vs. The Deputy Director of Consolidation And Others ....... Respondent Through:- Sri R.C. Singh, Senior Advocate and Sri Mahendra Pratap Tiwari, Advocate Hon'ble Saurabh Shyam Shamshery,J.
1. Heard Sri Sachida Nand Tripathi, learned counsel for the petitioner, Sri R.C. Singh, learned Senior Counsel assisted by Sri Mahendra Pratap Tiwari, learned counsel for contesting respondents.
2. This dispute is arising out of objections filed under Section 9A (2) of U.P. Consolidation of Holdings Act, 1953 (hereinafter referred as Act of 1953). There is no serious dispute that in basic year entries in regard to disputed land was in favour of respondent no. 4. In the proceedings, according to the then provision of Act of 1953, conciliation proceedings were undertaken and purportedly a compromise was prepared. However, it appears that it was not materialized and matter was later on referred by the Assistant Consolidation Officer to the Consolidation Officer for considering objections filed by both the parties. During the proceedings, the Consolidation Officer has framed following four issues:
"(i) आया कि काली प्रसाद खाता संख्या 17 में सहखातेदार हैं?
(ii) आया कि काली प्रसाद गाटा संख्या 96 वा 328 पर कब्जे के आधार पर सीरदार हैं?
(iii) आया कि राम प्रगट गाटा संख्या 39 में सहखातेदार हैं?
(iv) पक्षों के क्या भाग हैं?"
The petitioner has claimed that he has purchased land in dispute during an auction (i.e. he was an auction purchaser), and has co-bhumidhari right with original respondent and has long possession whereas original respondent has denied the claim of original contesting respondent.
3. The Consolidation Officer decided the rival objections by order dated 30.06.1972 and has given the following findings:
"पक्षों ने अपना अपना कागजी व जवानी सबूत पेश किया। काली प्रसाद के अनुसार विवादित भूमि प्रभुनाथ और तिलोक नाथ की थी। प्रभुनाथ व तिलोक नाथ चाचा भतीजे थे। प्रभुनाथ के कोई लड़का नहीं था इसलिए उनकी जमीन उनकी लड़की को मिली। यह लड़की राम आधार की औरत थी। उसके बाद यह जमीन राम सुख को मिली और राम सुख का हिस्सा नीलम हो गया जो परा सडोह के राम नारायण शुक्ल ने खरीदी और राम नारायण के बाद वह जमीन राम हरख को मिली और राम हरख ने अपने पूरे खेवट और मकान का बैनामा काली प्रसाद के नाम किया। इसी प्रकार तिलोक नाथ का 1/2 भाग उनकी लड़की को मिला और उनकी लड़की के मरने के बाद श्री कांत को मिला और श्री कांत के मरने पर राम सुंदर को मिला। दोनों पक्षों का हिस्सा खेवट में 2 आना 8 पाई था। राम हरख शुक्ल का 1/3 हिस्सा 1 आना चार पाई था इस प्रकार काली प्रसाद अपने को राम हरख से बैनामा के आधार पर 1/2 भाग का हिस्सा कहते हैं। कथित बैनामा की नकल पत्रावली पर संलगन हैं। जिससे विदित है कि राम हरख शुक्ल ने काली प्रसाद वादी के हक में केवल हिस्सा खेवट बेचा न की गाटों का हस्तान्तरण किया। दूसरी ओर प्रतिवादी राम सुंदर की ओर से नकल खतौनी 1359 फ० नकल खतौनी 1362 फ० दाखिल की गई है जिससे विदित हो कि राम सुंदर प्रतिवादी विवादित भूमि पर जमींदारी खात्मा से पहले से काबिज थे और यह भूमि उनकी सोर मालकस में दर्ज है। अत: वादी काली प्रसाद को खेवट के हिस्से के बिना पर इस भूमि पर सहखातेदारी का अधिकार प्राप्त नहीं होता। यहां तक वादी के कब्जे गाटा संख्या 96 व 328 का सवाल है नकल खसरा 12 साला से सिद्ध होता है कि काली प्रसाद का कब्जा निर्धारित समय से अधिक है। और इसी पर सहायक चकबंदी अधिकारी के समक्ष पक्षों ने अपना सुलहनामा भी किया था जिस पर अंत में प्रतिवादी के ना मानने के कारण नहीं हो सका। यह समझौता असल रूप में पत्रावली में इन बातों को दृष्टिकोण में रखते हुए काली प्रसाद वादी को कब्जे के आधार पर गाटा संख्या 96 व 328 पर सीरदारी अधिकार मिल जाते हैं चूंकि काली प्रसाद को सहखातेदारी के अधिकार प्राप्त नहीं होते हैं इसलिए बटवारे की आवश्यकता नहीं है। सभी वाद बिन्दु इसी प्रकार तय किये जाते हैं।"
(Emphasis supplied) The aforesaid findings were mainly based on compromise which has been disputed by the respondents side. Petitioner's long possession for more than 12 years on Gata No. 96 and 328 was accepted, however, petitioner's claim on basis of co tenure holder on other plot was rejected since he failed to prove his possession.
4. Both the parties being aggrieved, have approached the Settlement Officer of Consolidation by way of filing independent appeals. The appeals were decided by a common order dated 05.03.1973 thereby both appeals were dismissed and relevant part thereof is reproduced hereinafter:
"इस मुक़दमे में जहां तक राम सुंदर के अपील का सम्बन्ध है यह बात तो जाहिर है कि काली प्रसाद इस खेवट मे आ गये और उनका कुछ न कुछ सम्बन्ध इस ग्राम से हो गया है। इस कारण उनका किसी गाटे पर काबिज होना या कोई गाटा उनके नाम पर होना गलत नही होता इस तरह इतने सालों से कब्जे का लिखा आना उनके कथन को मजबूत करता है। इसके अलावा समझौता करके हस्ताक्षर भी हुये है। परन्तु उसके बाद राय बदल गयी। इससे कम से कम यह झलक जरूर होता है कि उनके कोई न कोई सम्बन्ध काली प्रसाद का हो गया। इस कारण मैं समझता हूँ कि राम सुन्दर का अपील निराधार है जहाँ तक काली प्रसाद के अपील का सम्बन्ध है सबसे पहले तो यह बात जाहिर नही है कि काली प्रसाद ने जिनसे भूमि लिया था और जिनसे काली प्रसाद ने लिया उनको जहाँ से मिला और उसके पहले भी जितने लोग गुजरते गये उनके नाम यह भूमि क्यों नही आई। जाहिर है कि नीलाम में जो हिस्सा लिया जावेगा उसी पर ही नाम दर्ज होवेगा और यदि कोई सीर उनके नाम होगी भी तो खुद ब खुद बैनामें द्वारा दूसरे को नहीं पहुँच सकती है। इस कारण काली प्रसाद का यह कहना कि उस भूमि में जो सन 1323 फ० में तनहा सीर लिखी है बिल्कुल गलत हो जाता है आपस के समझौते से अगर उनको कोई गाटा मिले तो उसका अबतक अमलदरामद क्यों नही हुआ। काली पर्साद की यह गलतफहमी मालूम होती है कि बैनामा खरीदने पर सीरोखुदकाश्त भी खेवट के बैनामेदार की हो जाती है। गाटा नं०39 जो खाता नं० 30 में है उसके सम्बन्ध में अधीन न्यायालय ने काली प्रसाद से विवाद नही लिखा है और अब अपील में काली प्रसाद ने खाता नं० 30 के सम्बन्ध में भी लिखा है कि मिसिल पर भी कोई आपत्ति गाटा नं० 39 के सम्बन्ध में नही है और न रामप्रगट आदि ने ही कोई अपील भी किया है। इसके अतिरिक्त जैसा कि मैने ऊपर लिखा है कि नीलाम में ये बाग भी शामिल था और यह बाग रामहरख तक पहुंचा जिससे काली प्रसाद ने बैनामा लिया वे इसको किसी प्रकार दावा करने का अधिकार नही है। बैनामे मे भी बागात का शब्द अलग नही लिखा गया है बल्कि दरख्तान लिखे गये हैं जिसका अर्थ मुतफर्रिक होता है। इस कारण अव्वल तो गाटा नं० 39 के सम्बन्ध में आपत्ति न करने और इतने अर्से से नाम न लिखे जाने के कारण बताने के वजह से मैं समझता हूँ कि गाटा नं०39 के बारे में जो खाता नं० 30 में शामिल है बहस करना गलत है। इन तमाम बातों को देखते हुए मैं समझता हूँ कि अधीन न्यायालय ने जो निर्णय किया है वह सही है।
अतः आदेश हुआ कि अपीलें खारिज होवें"
(Emphasis supplied)
5. Both the parties being further aggrieved have approached the Revisional Authority by filing separate revision. The revision filed by the petitioner being time barred i.e. filed five months beyond the limitation period was dismissed on ground of limitation. However, revision filed by the respondents was allowed, by order dated 14.05.1974. The relevant finding thereof are mentioned hereinafter :-
4. "पहले निगरानी सं 1249 को निर्णय के लिए लिया जाता है इस निगरानी के विषय में विपक्षी की ओर से यह बहस की गयी कि यह निगरानी मियाद बाहर दायर की गयी अतः इस आधार पर खारिज किये जाने योग्य है"।
x x x x x x x x x "बन्दोबस्त अधिकारी चकबन्दी से नकल प्राप्त करने के पश्चात् भी निगरानी कर्ता सवा पाँच माह तक चुप चाप बैठा रहा। जबकि वह अन्य मुकदमों में वह उपस्थित हो चुका था, इस प्रकार मियाद देने का कोई औचित्य नही है और काली प्रसाद की निगरानी संख्या 1249 खारिज करने योग्य है।"
5. "निगरानी संख्या 572 जिसे रामसुन्दर ने दायर की है वह अब निर्णय के लिए ली जाती है। इस निगरानी में गाटा सं० 96 10-4-11 और 3 रू०-10-8-0 के विषय में विवाद है जो राम सुंदर के नाम आधार वर्ष में अंकित है। काली प्रसाद ने इस गाटे पर अपना कब्जा बताया। इन गाटों के विषय में काली प्रसाद के पक्ष में अनाधिकारिक के आधार पर स्वत्व प्राप्त करने के लिए तनकीह बनी। चकबन्दी अधिकारी ने अपने आदेश दिनांक 30.6.72 द्वारा यह निर्णय लिया कि काली प्रसाद विवादित गाटों के सीरदार कब्जे के आधार पर हो चुके हैं। राम सुंदर ने अपील दायर की परन्तु उनकी अपील बन्दोबस्त अधिकारी चकबन्दी ने खारिज कर दी। अधीनस्थ न्यायालयों के आदेशों से छुब्ध होकर प्रस्तुत निगरानी सं० 572 राम सुंदर ने दायर की है।"
6. "यह बात निर्विवाद है कि विवादित गाटों को लिखित भूमि धर निगरानी कर्ता आधार वर्ष में है। काली प्रसाद ने अपने स्वत्व की पुष्टि में 1366 लगायत 1376 फ० के खसरे की प्रति दाखिल की है। गाटा सं० 96 पर काली प्रसाद का कब्जा 1366फ०,1372फ०,1373फ०, 1374फ०,1375फ० और 1376फ० में अंकित है। इस प्रकार कब्जे की प्रविष्टियाँ लगातार नहीं है। 1377 फ० या उसके बाद कब्जे की प्रविष्टियों के होने का कोई साक्ष्य नहीं मिलता। जो प्रविष्टियाँ है भी वे नियमानुसार नहीं है, क्योंकि उन पर प०क० 10 का हवाला नही है। गाटा सं० 328 पर काली प्रसाद का कब्जा 1370फ०, 1371फ०, 1372फ०, 1373फ०, 1374फ०, 1375फ० में अंकित है। 1376 फ० अथवा उसके बाद कब्जे की प्रविष्टियाँ दाखिल नहीं की गयी है। 1371 फ० से पूर्व भी इस गाटे पर काली प्रसाद का कब्जा अंकित नही है। कब्जे की ये प्रविष्टियाँ न तो नियमानुसार है और न ही इन पर प०क० 10 आदि का हवाला है। इस प्रकार काली प्रसाद के पक्ष में जो कब्जे के इन्द्राज है वे नियमानुसार नही है और उनके आधार पर उन्हे कोई स्वत्व नही मिल सकता है।"
(Emphasis supplied)
6. Learned counsel for the petitioner has submitted that since revision filed by the original petitioner was dismissed on limitation therefore the common impugned orders was confirmed and the Revisional Authority could not took a contrary view by allowing the revision petition filed by the original contesting respondent. He also submitted that since record was already summoned therefore, both the revisions ought to have been decided on merit and petitioner's revision ought not to have been dismissed on sole ground of limitation otherwise also delay was short and not extraordinary. Learned counsel on merit further submitted that the Revisional Authority has created a new case and that the claim of the petitioner was based on the entries, which was found to be correct and continuous. However, the Revisional Authority records a finding that claim of the petitioners would be based on adverse possession however since ground of adverse possession was not taken specifically, therefore, no benefit could be granted.
7. Learned counsel has submitted that the petitioner become co-tenant being a auction purchaser and there was no dispute that Prabhu Nath has half share as well auction proceedings were not disputed. The respondents of other branch could not object auction or its consequences. Objections, if any, ought to have been taken by the branch of Prabhu Nath but admittedly it was not taken. Learned counsel further submitted that since claim of original petitioner was based on co-tenancy, therefore, the question of adverse possession being contrary, could not be taken by him and the Revisional Authority has tried to make out a new case which was beyond its jurisdiction. Learned counsel further submitted that since conciliation proceedings were concluded and was duly signed by parties and also by two members committee, therefore none of the parties could take contrary stand and this argument was neither referred nor considered by the Deputy Director of Consolidation though specifically taken in memo of Revision filed by the original petitioner.
8. Per contra Sri R.C. Singh, learned Senior Counsel appearing on behalf of respondents has submitted that original petitioner has made self contradictory claim. On one hand has claimed right on basis of a co-tenancy, whereas on other hand claimed right on basis of his long possession, being adverse to the real owner and being inconsistent pleadings his claim could not be accepted and has referred paragraph nos. 9 and 10 of the writ petition, which are reproduced hereinafter:
" That the petitioner produced certified copy of Khasra of 1356F, certified copy of Khasara 1359F and 1360F besides 12 years Kasra since 1363F to 1376 before the Consolidation Officer opposite party No.3 and also examined himself as witness and examined one Permeshwar as his witness to prove his possession since long. It is also noteworthy that at one stage the possession of the petitioner was admitted by the opposite party no.4. The opposite parties no.2 and 3 considered all the above materials on record along with the fact that the petitioner was also Zamindar of ½ share in the khata khewat and then gave findings of possession in favour of the petitioner but opposite party no.1 rejected the entries of 12 years khasra illegally and incorrectly and overlooked the other materials and circumstances altogether considered by the opposite parties nos. 2 and 3. He also did not consider oral evidence produced by the petitioner. He also did not consider the Samjhauta which once took place between the petitioner and opposite party no.4. Thus the judgment of the opposite party no.1 is vitiated on account of non consideration of material evidence on record and the circumstances present and also on account of the illegal rejection of the entries of 12 years extract of khasra about possession filed in the case.
That the opposite party no.1 committed apparent mistake in rejecting the alternative case taken by the petitioner. The petitioner was entirely justified to take the alternative case. That if his case of co-bhumidhar of Khata no.17 may not be established he may be declared bhumidhar and sirdar of plot no. 96 and 328 on account of his long possession."
9. Learned Senior Counsel has referred part of order passed by the Consolidation Officer, that claim of original petitioner was considered on basis of his long possession being adverse to contesting original respondent and that case of respondent was neither referred nor decided nor a single averment raised was considered or made part of the impugned order. The compromise was never accepted on behalf of respondent, since the Assistant Consolidation Officer has not passed any order on basis of the compromise and matter was referred for ad-adjudication to the Consolidation Officer. It itself indicates that compromise was never entered or accepted to the parties. And therefore, reliance placed by the Consolidation Officer on compromise was illegal. The same error was followed by the Appellate Authority.
10. Learned Senior counsel has submitted that compromise was rightly ignored by the Deputy Director of Consolidation. Learned Senior counsel has thereafter referred consequence, if any, of the dismissal of the Revision filed by petitioner on the ground of limitation that since the revision petition filed by original contesting respondent was decided after hearing both the parties and the claim of the petitioner was non suited on merit therefore, there would be no adverse legal consequence of the dismissal of the revision petition filed by the petitioner, since he was heard and his objections and submissions were considered on merit and only thereafter a finding was returned by the Deputy Director of Consolidation. That since the petitioner has not make out a claim of being co-tenant and also failed to make out a case on his long possession since revenue entries were not continuous as well as procedure of form PA 10 was also not duly followed. In support of submission that petitioner was not permitted to take two contrary pleadings i.e. claim on basis of a co-tenancy and claim based on adverse possession, he placed reliance upon the judgment of Supreme Court in Annasaheb Bapusaheb Patil & Ors. vs Balwant And Balasaheb Babusaheb 1995 AIR 895, 1995 SCC (2) 543 and its paragraph nos. 13, 14 and 15 being relevant are referred hereinafter:
"13. Article 65 of the Schedule to the Limitation Act, 1963 prescribes that for possession of immovable property or any interest therein based on title, the limitation of 12 years begins to run from the date of the defendant's interest becomes adverse to the plaintiff. Adverse possession means a hostile assertion i.e. a possession which is expressly or impliedly in denial of title of the true owner. Under Article 65, burden is on the defendants to prove affirmatively. A person who bases his title on adverse possession must show by clear and unequivocal evidence i.e possession was hostile to the real owner and amounted to a denial of his title to the property claimed. In deciding whether the acts, alleged by a person, constitute adverse possession, regard must be had to the animus of the person doing those acts which must be ascertained from the facts and circumstances of each case. The person who bases his title on adverse possession, therefore, must show by clear and unequivocal evidence i.e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed.
14. Where possession could be referred to a lawful title, it will not be considered to be adverse. The reason being that a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another's title. One who holds possession on behalf of another, does not by mere denial of that other's title make his possession adverse so as to give himself the benefit of the statute of limitation. Therefore, a person who enters into possession having a lawful title, cannot divest another of that title by pretending that he had no tide at all.
15. In the case of a Hindu joint family, there is a community of interest and unity of possession among all the members of the joint family and every coparcener is entitled to joint possession and enjoyment of the coparcenery prop- erty. The mere fact that one of the coparceners is not in joint possession does not mean that he has been ousted. The possession of the family property by a member of the family cannot be adverse to the other members but must be held to be on behalf of himself and other members. The possession of one, therefore, is the possession of all. The burden lies heavily on the member setting up adverse possession to prove adverse character of his possession by establishing affirmatively that to the knowledge of other member he asserted his exclusive title and the other members were completely excluded from enjoying the property and that such adverse possession had continued for the statutory period. Mutation in the name of the elder brother of the family for the collection of the rent and revenue does not prove hostile act against the other. The right of the plaintiff to file suit for partition had arisen after the Act has come into force and regrant was made by the Collector under sub- s.(1) of s.5. The defendant, therefore, must plead and prove that after the regrant, he asserted his own exclusive right, title and interest to the plaint schedule property to the knowledge of the plaintiff and the latter acquiesced to such a hostile exercise of the right and allowed the defendant to remain in continuous possession and enjoyment of the property in assertion of that hostile tide during the entire statutory period of 12 years without any let and hindrance and the plaintiff stood thereby."
11. Learned Senior counsel has submitted that in support of his submission, that original petitioner was failed to prove his continuous possession of more than 12 years on basis of irregular entries made under column 9 and Form PA 10 was not duly signed by the respondents as well as entries were not continuous and were fictitious, he has placed reliance upon the judgment passed by this Court in the case of Mata Din Singh vs D.D.C. And Others, Neutral Citation:2023AHC 15829 and relevant paragraph thereof is reproduced hereinafter:
34. In view of discussion and findings on above referred issues, I am of the considered opinion that all the Authorities under the Consolidation Act have erred and miserably failed to return a finding whether mandatory procedure for recording revenue entries under 'the Manual' was followed and have also erred in returning a finding about adverse possession only on the basis of revenue entries which only indicates the possession of the respondents for less than 12 years as well as that PA-10 was not prepared in terms of the procedure prescribed under 'the Manual' and further erred in placing reliance on the evidence of mukhtar-khas who was not competent to give evidence in regard to facts which were in exclusive knowledge of the original respondent qua to adverse possession. Lastly, the Authorities have also failed to give finding that possession of respondent was nec vi, nec clam, nec precario. .
12. Learned Senior Counsel has also submitted that order passed by the Consolidation Officer and the Settlement Officer of Consolidation were based on conjecture and surmises and they neither referred any evidence nor specific finding was returned.
13. In rejoinder learned counsel for petitioner has submitted that the compromise entered between the parties were duly signed by them and their signatures were not in dispute. Therefore, respondent could not betray from compromise and the Consolidation Officer as well as the Appellate Authority has rightly relied upon the same but the Deputy Director of Consolidation has erroneously neither referred it nor had relied upon. He reiterated that petitioner was not a stranger and his name was mentioned in the Khevat along with original contesting respondent as co-tenant. The question of alternative plea cannot construed to be adverse since their possession was found on the basis of their long possession which was admitted in the compromise. The claim of the petitioner was rightly decided on basis of entries in khevat, which were wrongly disturbed by the Deputy Director of Consolidation and adverse consequence would fall since the revision petition filed by the petitioner was dismissed on ground of delay and his substantive submission made in the memo of revision were not heard.
14. The Deputy Director of Consolidation has wrongly created a new case that the case of the petitioner was claimed on the basis of adverse possession and he has placed reliance on Ramakant Singh vs Deputy Director Of Consolidation AIR 1975 All 126 that once record has been summoned thereafter the Deputy Director of Consolidation is under obligation to decide revision petition on merit and it could not be dismissed only on the ground of limitation. Relevant paragraph is mentioned hereinafter:
17. In view of the above observations, our answer to the question referred to this Full Bench is:--
After the record has been called for by the Deputy Director of Consolidation under Section 48 of the U. P. Consolidation of Holdings Act he should examine the record to decide whether it was a fit case for exercise of the revisional jurisdiction suo motu. Such opinion shall have to be formed even where the application in revision moved by a party is defective having been made beyond the prescribed period of limitation or all the necessary parties have not been impleaded.
If the Deputy Director of Consolidation finds that the case requires further hearing he shall give notice to all the necessary parties irrespective of whether they were or were not impleaded in the application and after giving them reasonable opportunity of hearing pass such orders as he thinks fit. Where the application in revision is not defective and is maintainable the exercise of revisional jurisdiction shall be at the instance of the Parties and not suo motu.
15. Heard learned counsel for parties and perused the record.
16. The original petitioner has made claim on three Gata on basis of separate grounds. On Gata No. 17, he has claimed 'co-tenancy' with original contesting respondent, whereas on Gata No. 96 and 328, he has claimed 'Sirdari' on basis of his long possession.
17. All three consolidation authorities have rejected the claim of 'co-tenancy' on Gata No.17. The Consolidation Officer has held that respondent (Ram Sundar) was in possession of said land even prior to Zamindari Abolition and since original petitioner was not recorded his khewat, therefore he could not be declared 'co-tenant'. The Appellate Authority has not disturbed the said finding and since Revisional Authority has dismissed the Revision filed by the petitioner on limitation, the said findings are deemed to be affirmed.
18. The learned counsel for the petitioner has urged that since record was summoned and delay was not extraordinary, therefore the Revision filed by the petitioner ought to have been heard on merit and its dismissal has prejudiced him, since his challenge is negative finding on 'co tenancy' was not heard though other Revision where finding on he being 'Sirdar' on Gata Nos. 96 and 328 was heard and set aside.
19. The delay in filing Revision Petition by original petitioner was just more than 5 months. The Revisional Authority has given reason for not condoning such delay that there was no 'sufficient cause'. I am of considered opinion that Revisional Authority instead of a 'liberal, pragmatic, justice oriented and non pendantic approach, has adopted a strict approach and considered the 'sufficient cause' in a very technical sense. In the facts and circumstances of present case delay of five months could not be considered to be an inordinate delay, which requires strict approach. It was not even warranted, since the Revisional Authority was hearing the other revision arising out of a common judgment. The Revisional Authority has acted in teeth of law propounded by the Supreme Court in Esha Bhattacharjee vs. Managing Committee of Raghunathpur Nafar Academy and others, (2013) 12 SCC 649 and relevant paragraph 21 along with its sub paragraphs are mentioned hereinafter:-
"21. From the aforesaid authorities the principles that can broadly be culled out are:
21.1. (i) There should be a liberal, pragmatic, justice-oriented, non-pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice.
21.2. (ii) The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation.
21.3. (iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.
21.4. (iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.
21.5. (v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.
21.6. (vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice.
21.7. (vii) The concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play.
21.8. (viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.
21.9. (ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.
21.10. (x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation.
21.11. (xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.
21.12. (xii) The entire gamut of facts are to be carefully scrutinised and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.
21.13. (xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude." .
20. The above observation and opinion are sufficient to set aside impugned order and to remit the case for reconsideration but a fact that this writ petition is pending before this Court for last 49 years (i.e. about five decades) and to remand would be in the interest of justice or not as well as that there were concurrent finding against the petitioner of two authorities i.e. Consolidation Officer and Settlement Officer of Consolidation, regarding issue of co-tenancy, therefore, before taking a decision, whether to remit the case or not, the Court proceed to consider whether the Revisional Authority was justified in reversing the concurrent finding returned in favour of original petitioner in regard to his continuous long possession on two gatas bearing nos. 96 and 328 in a revision filed by the original contesting respondent.
21. The concurrent findings returned by the Consolidation Officer and Settlement Officer of Consolidation in regard to long possession of original petitioner were based on revenue entries of 12 years and contents of compromise duly signed by parties but later on not acted upon. The concurrent findings were disturbed by the Revisional Authority on two grounds i.e. entries of 12 years of possession were not continuous as well as further entries were missing and Form PA10 was not duly prepared. The parties to the writ petition have not brought on entire pleadings on record, though some documents were placed along with a supplementary affidavit filed by the petitioners, which are as follows:
(i) Type copy of an agreement allegedly signed by the parties over plot nos. 96 and 328
(ii) A certified copy of 1359 F, where possession of original petitioner was also recorded on plot no. 96 and 328.
(iii) A certified copy of Khasra No. 1366 F to 1368 F that other portions of Plot No. 328 were noted without any Batta.
(iv) Statements of witnesses recorded during proceedings.
22. There are contrary findings as returned by the Consolidation Officer and the Appellate Authority where 12 years Khasra was considered to be sufficient to prove that petitioner has long possession, whereas the Revisional Authority has held that those entries were not continuous as well Form PA10 was not duly prepared though it was for the first time taken up for consideration.
23. Before further consideration recent judgments of Supreme Court in Sirajudheen vs. Zeenath 2023 SCC OnLine SC 196 and Nadakerappa vs. Pillamma, 2022 SCC OnLine SC 387, on issue of 'remand', would be relevant, wherein Supreme Court has observed that order of remand cannot be passed as a matter of course and an endeavour has to be made by High Courts to dispose of the case on merit.
24. The Court is handicapped since entire record of authorities below was not summoned and therefore, relevant document which are essential to consider to scrutinize the finding and contra-finding on possession are not on record. The parties have also not brought on record the entire pleadings, therefore, in absence of entire record this Court is not able to decide the issue judicially.
25. In view of above discussion, dismissal of revision filed by original petitioner on ground of delay became important and in preceding paragraph, I have taken a view that it was illegal order, and that in absence of complete record, I am not able to decide other issue, where revisional Court has taken a contrary view on basis of record, therefore, even though, this writ petition is pending four about last five decades, as well as taking note of Sirajudheen (supra) and Nadakerappa (supra), I am of considered opinion that impugned order is liable to be set aside and the matter be remitted back to Deputy Director of Consolidation to decide both revisions on merit, afresh.
26. Considering that this matter is very old, therefore the Deputy Director of Consolidation shall decide both Revision Petitions within one year from today, without granting any adjournment and a report thereof shall be submitted to Consolidation Commissioner, Lucknow.
27. The parties shall file amended memo of parties within four weeks from today. The Consolidation Commissioner shall ensure that direction of this Court be complied with, in its letter and spirit.
28. Writ petition is allowed in part with above observations and directions.
29. Registrar (Compliance) to take appropriate steps.
Order Date :-12.09.2023 A. Tripathi