Allahabad High Court
Ram Sunder vs D.D.C.& Others on 10 May, 2010
Author: Yogendra Kumar Sangal
Bench: Yogendra Kumar Sangal
1 AFR RESERVED Court No. - 10 Case :- CONSOLIDATION No. - 353 of 1992 Petitioner :- Ram Sunder Respondent :- D.D.C.& Others Petitioner Counsel :- M.A.Siddiqui Respondent Counsel :- R.N.Gupta Hon'ble Yogendra Kumar Sangal,J.
Heard learned counsel for the parties, learned Standing Counsel for the State and perused the record.
This writ petition has been filed with the prayer to issue a writ, order or direction in the nature of certiorari quashing the order dated 11.06.1992 passed by the Deputy Director of Consolidation, Faizabad.
Undisputedly, predecessor of the petitioner Neemar was recorded tenure-holder of the land in dispute No. 3984/8/2 area 2-14-0 and plot No. 3984/8/4/1 area 3-6-0, both relating to Khata No. 183 and in Plot No. 3984/8/4/2 area 2-15-0 relating to Khata No. 325 which is entered as Navin Parti in the revenue record. There is no dispute between the parties regarding Khata No. 183. This dispute relates to Khata No. 325 whcih is recorded in the name of Gaon Sabha as Navin Parti in the Khatauni of the basic year of consolidation scheme. Father of the petitioner Neemar claimed his possession and title on the land of Khata No. 325 before the Consolidation Officer under Section 9 of the Act by filing objection saying that area of his Khata is 8-12-0 Hectare. Wrongly area of 2-15-0 2 shown as Navin Parti, he prayed for cancellation of this entry of Navin Parti. Consolidation Officer vide order dated 06.03.1982, partly accepted his request and the ordered to record his possession on this land. Aggrieved by this order, he filed an Appeal before the S.O.C. (Settlement Officer Consolidation), who vide his order dated 18.08.1982 allowed his Appeal and on the basis of registered Lease-deed in his favour ordered to record his name on the land of Khata No. 325 showing him Bhumdhar of the same on the area of 2-8-0. On the rest area of 0-7-0 ordered for recording Navin Parti of Gaon Sabha. Aggrieved by this order, respondent no. 2 Anand Prakash has filed Revision before the D.D.C. (Deputy Deputy Director of Consolidation). On 02.12.1986. As the Revision was time barred so he moved an application with affidavit to condone the delay. He challenged the orders of the courts below saying that on the basis of forged deed and entries in the record name of Neemar was record by the courts below. On the other hand, on behalf of Neemar it was argued that Anand Prakash has no concern with the property in dispute. He has no locus standi to file the Revision. Moreover, there is inordinate delay in filing the Revision, it is not explained and rightly the S.O.C. after considering the evidence on record ordered for recording his name on the land of Plot No. 325 area 2-8-0. Anand Prkash Pandey claimed himself member of the village and it was said on his behalf that as the land of Khata No. 325 was of Navin Parti and of public utility owned by the Gaon Sabha of the village so he is entitled to file the Revision. It is not disputed on behalf of the petitioner that this Anand 3 Prakash Pandey lives in the village and in Partal statement land of Khata No. 325 2-15-0 is shown Navin Parti land of the Gaon Sabha. Moreover, it was further argued on behalf of the respondent that for the sake of arguments, if it is taken correct that there is no personal interest of the respondent no. 2 in the matter and land of Khata No. 325 not shown in his personal name, even then, by petition of Revision if he brought these facts in the knowledge of D.D.C., if the D.D.C. has passed the order taking notice of the matter suo- motu and passed the impugned order under his supervisionary control under Section 48 of the Act and Gaon Sabha to whom the property relates, is not opposing the Revision filed by him, there is no illegality, invalidity and impropriety in the order passed by the Deputy Director of Consolidation. It was a case of loss to the residents of the village and among them one was the respondent no. 2. Further as regards, the delay in filing the Revision matter in dispute was of the land of public utility. If it is taken correct that on suo-motu action in general power of supervision on the orders passed by the subordinate courts, there is no limitation in exercising such powers. On both these points, learned D.D.C. has also given finding and held that respondent no. 2 brought facts to his knowledge challenging the correctness of the order passed by both the courts below and delay if in filing the Revision the same is to be condoned. In the aforesaid facts and circumstances of the case and considering the arguments raised by both the parties, I am of the view that there is no illegality, invalidity and impropriety in the order passed by the learned D.D.C. for entertaining revision and condoing the 4 delay in the matter. If he has condoned the delay in filing the Revision also passed order on merit. There is no illegality, invalidity and also impropriety in the order seeing the fact that matter relates to the land of public utility.
Neemar, Father of the petitioner had claimed his right on the basis of a Lease-deed executed by one Awadhesh Pratap Singh in his favour of the land of Plot No. 3984 area 2-8-0 registered on 29.05.1951 and executed on 27th September, 1951. Copy of this deed is also available on the writ file. This was not an legible copy. Learned counsel for the petitioner was asked to file certified copy and typed copy of this deed but for the reason best known to him, he has not filed the same. From the record, it reveals that neither Neemar had examined himself nor marginal witness of the deed were examined on his behalf to prove the legality and validity of this deed. Learned counsel for the petitioner referred the amended provisions in U.P. of Section 90 of the Evidence Act and argued that this deed was more than 20 years old when produced in the court and it was admissible in evidence. Learned counsel for the respondent had drawn my attention on the proviso of Section 90 of the Evidence Act and argued as this document was basis of the claim of Father of the petitioner so under the provisions of Law it requires proof. I am also of the view that for the purpose of seeing this document in Evidence it requires proof as it was the basis of the case of the father of the petitioner. Further from perusal of the record, it reveals that there was no plot of the area 2-8-0 and the area of the Plot No. 3980 was 2-15- 5
0. Not the case of the petitioner that part of land of plot was retained by him. Awdhesh Pratap for his own use or it was in use of the Gaon Sabha. Something unnatural that only 2-8-0 land will be leased out. If this Awdhesh Pratap Singh was having right to execute the Patta, what remains for the land of 7 Biswa of this plot , it is not clear from the record.
From perusal of this deed, it reveals that it is prepared on a printed form by filling the blanks. How this Awadhesh Pratap Singh was having right in this land to execute the Patta of the land of 2 Bigha 8 Biswa in favour of Neemar, it is also not clear from this deed. Lessor was also not examined as witness. He had shown Neemar in this deed as Asami and how he has matured right of Asami on this land it is also not clear from this deed. When he was having right of 'Asami' what was necessity of this lease deed, it is not clear. Possibility can not be ruled out, only to manipulate the evidence, this deed was get prepared. From the record, as held also by the D.D.C. it is clear that on the date of Patta, Awadhesh Pratap Singh was not recorded tenure-holder on this land. Name of Sheetla Prasad was recorded on the land of Plot No. 3984. Learned D.D.C. has observed in the impugned judgment that Awadhesh Pratap Singh was not having any right to execute Patta in favour of Neemar, father of the petitioner so by this deed and it cannot be accepted that Neemar has acquired right on the land in dispute. It is further held that on the basis of this document his possession on the land in dispute also cannot be recognized.
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Certain irrigation slips of different dates, year and period were also filed on behalf of the petitioner and claimed that these irrigation slips are sufficient to establish the possession of Neemar on the land in dispute. With the panic eyes, dealing each and every slip in detail, learned D.D.C. had given finding that these receipts were not issued for irrigation of the land in dispute. These relate to some other land. How these findings of learned D.D.C. are wrong, it is not clarified on behalf of the petitioner during the course of arguments. The alleged deed was executed and registered on 29.09.1991, as per case of the petitioner. Why till date when the Consolidation proceedings were started in the area on the basis of this Patta , he had not made any effort to get recorded his name as Bhumidhar in the revenue record on the land of Plot No. 325, it is also not sufficiently explained on his behalf.
Learned counsel for the petitioner argued that if it is taken correct that Lease-deed is of no help of the petitioner, even then petitioner and his father are in continuous possession of the land in dispute and they have acquired Sirdari rights on it which are now recognised as Bhumidhari rights. Learned Standing Counsel argued that petitioner has failed to establish their possession on the land in dispute since long. Moreover, the land is entered in the name of Gaon Sabha as Navin Parti. Under the provisions of Law, no right, title and interest on the basis of adverse possession are acquired in the land of Gaon Sabha so this argument is also without force. There is force in the arguments, raised by the learned Standing Counsel and it cannot be held that by adverse 7 possession, petitioner acquired any right in the land in dispute.
Learned D.D.C. has also discussed in the impugned judgment, why the orders passed by both the courts below are not in conformity of the evidence available on the record. By giving detail and sufficient reasons, learned D.D.C. has set aside the order passed by both the courts below. It is established law that if it is found that judgments of the lower courts are not in conformity with the evidence available on record, the judgment cannot be said outcome of proper exercise of jurisdiction by the courts below and in revisional power, the Revisional Court can interfere in the judgments passed by the trial courts. It is also established law that the High Court should not act like an appellate court in writ jurisdiction under Article 226/227 of the Constitution of India. In exercise of its jurisdiction in grave cases, where the subordinate courts act wholly without jurisdiction or in excess of it or in violation of principle of natural justice or refused to exercise the jurisdiction vested in it or there is apparent errors resulted in manifest injustice is permitted.
In the circumstances of the case, it is evident that the writ petition has not been filed with bonafides and the petitioner has not approached this court with clean hands.
Accordingly, the Writ Petition is hereby dismissed.
10.05.2010 Kaushal