Allahabad High Court
Mohd. Jahid vs Deputy Director Of Consolidation, ... on 26 September, 2025
Author: Alok Mathur
Bench: Alok Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Neutral Citation No. - 2025:AHC-LKO:60960
Reserved on 10.9.2025
Delivered on 26.9.2025
AFR
HIGH COURT OF JUDICATURE AT ALLAHABAD LUCKNOW
WRIT - B No. - 840 of 2025
Mohd. Jahid .....Petitioner
Versus
Deputy Director Of Consolidation, Raebareli And 5 Others
.....Respondent(s)
Counsel for Petitioner(s) : Ankit Pande, Virendra Bhatt
Counsel for Respondent(s): C.S.C., Ashish Chaturvedi, Dilip Kumar Pandey
HON'BLE ALOK MATHUR, J.
1. Heard Shri R.S. Pandey, learned Senior Advocate assisted by Shri Ankit Pandey for the petitioner, learned Standing Counsel for respondent no.1, Shri Dileep Kumar Pandey, learned counsel for respondent no.2 and Shri Desh Deepak Singh and Ms. Aniveksha Shukla holding brief of Shri Ashish Chaturvedi for the private respondents.
2. By means of present writ petition, the petitioner has assailed the validity of the order dated 27.6.2025 passed by the Deputy Director of Consolidation, District Raebareli in exercise of power under Section 48 (1) of Uttar Pradesh Consolidation of Holdings Act, 1953 remanding the matter back to the trial court for decision afresh.
3. It has been submitted by learned counsel for the petitioner that controversy in the present case pertains to land situated at Khata No. 282 comprising plot no. 511/1.264 hectare, 2740/0.440 hectare and 298/0.277 hectare, situated at village Ataganj, Usari, Pargana and Tehsil Salon, District Raebareli.
4. It has been submitted by learned counsel for the petitioner that the aforesaid land was recorded in the name of Sadique son of Mohd. Khalique and Shakeel son of Nasir. He has submitted that in the basic year Khatauni the disputed land was initially recorded in the name of Khalique who was survived two sons, namely, Sadique and Nasir. Nasir died in 1979 and was survived of his wife Zohra Bibi and his son Shakeel.
5. According to the petitioner, Zohra Bibi after the death of her husband Mohd. Nasir, remarried with one Aziz Ahmad son of Wajid Ali and after taking divorce remarried on 21.10.1994 with Mobin Ahmad son of Munir Ahmad. It has further been submitted that Shakeel son of Nasir died on 10.11.1991.
6. It is in the aforesaid circumstances, it has been submitted that Sadique son of Mohd. Khalique moved an application for mutation of his name in the revenue record on 11.12.1991 and in the meanwhile Smt. Zohra Bibi got her name mutated through P.A. 11 in the revenue record in place of Shakeel Ahmad who has died as a minor. Siddique who is the father of the petitioner had also moved an application on 11.12.1991 for setting aside the order passed in P.A. 11. The Tehsildar by means of order dated 27.11.1992, set aside the order passed by the Supervisor Kanungo in favour of Smt. Zohra Bibi and allowed the application of Saddique as being the heir and successor of Shakeel Ahmad son of Nasir.
7. It has further been submitted that though the order dated 27.11.1992 was challenged by Smt. Zohra Bibi but her name has been recorded for second time through P.A. 11 being the widow of Nasir in place of Shakeel on 3.12.1992 and on the basis of the said entry executed a sale deed in favour of opposite parties no. 3 to 6 on 29.1.1999.
8. It has further been stated that the said village came under consolidation operations by issuance of Notification under Section 4-A of Consolidation of Holdings Act, 1953 in the year 2008 and application was made by opposite parties no. 3 to 6 under Section 9 of the Act, 1953 for recording the name on the basis of sale deed executed by Smt. Zohra Bibi in their favour on 29.1.1999. The Consolidation Officer allowed the objections on 8.6.2012 and passed the orders for recording the name of opposite parties no. 3 to 6 in the revenue record in place of Shakeel Ahmad. When Saddique the father of the petitioner came to know about the order dated 8.6.2012, he had moved an application for recall and the ex-parte order was recalled.
9. The Consolidation Officer by means of order dated 22.6.2023 allowed the objections filed by Sadique and directed that his name be recorded in place of Shakeel Ahmad son of Mohd. Nasir as being successor.
10. The opposite parties no. 3 to 6 filed an appeal on 23.7.2023 under Section 11 Act of 1953 before the Settlement Officer, Consolidation challenging the order dated 22.6.2023 which appeal was dismissed by means of order dated 9.5.2025 and the order of Consolidation Officer dated 22.6.2023 was affirmed.
11. Aggrieved by the order dated 9.5.2025, the opposite parties no. 3 to 6 filed a revision before the Deputy Director of Consolidation which has been allowed by means of the impugned order dated 27.6.2025 and the matter has been remanded to the Consolidation Officer and the order of the Appellate Authority dated 9.5.2025 has been set aside.
12. Counsel for the petitioner while assailing the impugned order has submitted that the Deputy Director of Consolidation has illegally and arbitrarily remanded the matter back to the Consolidation Officer despite there being sufficient material available on record for deciding the matter himself rather than remanding the matter, afresh before the Consolidation Officer. He submits that the law in this regard has been reiterated by this Court in several cases. The Deputy Director of Consolidation in exercise of power under Section 48 of the Act 1953 has sufficient power to take evidence and also re-appreciate the evidence and decide the entire controversy himself rather thatn remanding the case back to the trial court. He has relied upon the judgment in the case of Afsar Ali Khan and others Vs. Liyakat Khan and others [2025 (166) RD 233] and Angad Pratap Singh and others Vs. Deputy Director Consolidation and others [2023(41) LCD 604].
13. Counsel for the respondents, on the other hand, opposed the writ petition. They have submitted that a perusal of the order of the Consolidation Officer itself would indicate that the stand of the petitioner before all the Authorities has been wavering and even different dates of death of Shakeel i.e. 2006, 1991, 1989 and 18.8.2021 has been mentioned by him in the proceedings which is relevant for deciding the present controversy.
14. It has been submitted that after the death of Nasir the property devolved upon Sahkeel being the legal heir and son of Nasir. It has been further stated that Smt. Zohra Bibi has re-married after the death of Nasir and as per the provision of Section 171 of U.P. Z.A. & L.R. Act the property would revert to Sadique son of Mohd. Khalique is the male lenient descendant and the elder brother of Nasir.
15. Apart from the above, with regard to the aspect of remarriage of Smt. Zohra Bibi, I find that only an oral assertion was made before the Consolidation Officer and there was no material document or evidence placed to indicate the same. Even with regard to the death of Mohd. Nasir only a photo copy was produced and according to the Settlement Officer, Consolidation the same was not be proved.
16. It is in the aforesaid facts that this Court is called upon to examine the legality and validity of the order passed by the Deputy Director of Consolidation and also as to whether in the peculiar circumstances of the case whether he could have decided the controversy himself or has committed any error in remanding the matter back to the Consolidation Officer. The Deputy Director of Consolidation has firstly considered the fact undoubtedly against the order of mutation dated 27.11.1992 where the name of Smt. Zohra Bibi was deleted and the name of Sadique was mutated and no appeal was filed by her but in 1997 she got her name recorded in the revenue record through P.A. 11. Secondly the date of death of Shakeel Ahmad is also not clear from the record as 4 different dates have been mentioned with regard to the death of Shakeel Ahmad i.e. 2006, 1991, 1989 and 18.8.2021.
17. Now, the question arises as to whether the Deputy Director of Consolidation has rightly and in accordance with law has set-aside the judgment and order of the Trial Court and remanded the matter for decision afresh in accordance with the directions and observations or the revisional Court could have framed the issues and referred the matter to the Trial Court for taking evidence on them and after trying recorded it's findings and decided the appeal.
18. The provision of remand made in Rule-23, 23-A and 25 of Order XLI of CPC are relevant for considering the above issue, which are extracted here-in-below:-
"23. Remand of case by Appellate Court.- Where the court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the court from whose decree the appeal is preferred, with directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand.
The Following Allahabad High Court Amendment has been made in aforesaid Rule 23:
a. (i) Insert he following after the words 'and the decree is reversed in appeal", namely: "or where the Appellate Court while reversing or setting aside the decree under appeal considers it necessary in the interest of justice to remand the case, it"; and
(ii) delete the words "the Appellate Court" occurring thereafter and delete also the words "if it thinks fit", occurring after the words "may".
23.(A)- Remand in other cases- Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a re-trial is considered necessary, the Appellate Court shall have the same powers as it has under rule 24..
25. Where Appellate Court may frame issues and refer them for trial to Court whose decree appealed from. - Where the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits the Appellate Court may, if necessary, frame issues, and refer the same for trial to the Court from whose decree the appeal is preferred, and in such case shall direct such Court to take the additional evidence required; and such Court shall proceed to try such issues, and shall return the evidence to the Appellate Court together with its findings thereon and the reasons therefor within such time as may be fixed by the Appellate Court or extended by it from time to time.
19. In view of above, Rule 23 as amended by the Allahabad High Court is 'where the court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal or where the Appellate Court while reversing or setting aside the decree under appeal considers it necessary in the interest of justice to remand the case, it may by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its judgment and order to the court from whose decree the appeal is preferred, with directions to re-admit the suit under its original number in the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand.'
20. The aforesaid Rule 23(A) provides in regard to the appeal, which has been preferred against the decree which has been made otherwise than on a preliminary point, and the decree is reversed in appeal and a re-trial is considered necessary, the Appellate Court shall have the same powers as it has under rule 23. In both the aforesaid rules, the power of First Appellate Court is one and the same as given in Rule 23 according to which, in case of reversal of a decree in appeal the Appellate Court may remand the case for re-trial. Rule 25 provides the contingencies in which the Appellate Court can frame the issues and refer the matter to the Trial Court for taking evidence on them and trying the said issues, who shall send then to the same with it's findings thereon to the Appellate Court and the Appellate Court can decide the appeal accordingly.
21. Rule 25 of Order XLI C.P.C. provides that where the court from whose decree the appeal is preferred has omitted to frame or try any issue or to determine any question of fact, which is essential to the right decision of the suit upon merits, the Appellate Court may frame the said issues and refer to the concerned court for trial of same after taking evidence and referring to the Appellate Court with it's findings and reasons thereon and then the Appellate Court may decide the appeal. Thus this procedure can be followed only if the Trial Court has omitted to frame or try any issue or determine any question of fact whereas in the present case the Trial Court has failed to follow the due procedure of law in deciding the suit as indicated above, therefore, this Court is of the view that this procedure could not have been followed by the Trial Court and it has rightly an in accordance with law has set-aside the judgment and order passed by the Trial Court and remanded the matter for a fresh decision.
22. The Hon'ble Supreme Court, in the case of Syeda Rahimunnisa Vs. Malan Bi (dead) by L.R.s and Another, (2016) 10 SCC 315, has held that the power of the Appellate Court to remand the case to a subordinate court is contained in order XLI Rule 23, 23-A and 25 of C.P.C. It is, therefore, obligatory upon the appellant to bring the case under any of these provisions before claiming a remand and the Appellate Court is required to record reasons as to why it has taken recourse to any one out of three Rules of Order XLI of C.P.C. for remanding the case to the Trial Court. Relevant paragraph 35 is extracted here-in-below:-
"35. It is a settled principle of law that in order to claim remand of the case to the Trial Court, it is necessary for the appellant to first raise such plea and then make out a case of remand on facts. The power of the Appellate Court to remand the case to subordinate court is contained in order XLI Rule 23, 23-A and 25 of C.P.C. It is, therefore, obligatory upon the appellant to bring the case under any of these provisions before claiming a remand. The Appellate Court is required to record reasons as to why it has taken recourse to any one out of the three Rules of Order XLI of C.P.C. for remanding the case to the Trial Court. In the absence of any ground taken by the respondents (appellants before the First Appellate Court and High Court) before the First Appellate Court and the High Court as to why the remand order in these cases is called for and if so under which Rule of Order XLI of CPC further in the absence of any finding, there was no justification on the part of the High Court to remand the case to the Trial Court. The High Court instead should have decided the appeals on merits. We, however, do not consider proper to remand the case to High Court for deciding the appeals on merits and instead examine the merits of the case in these appeals."
23. The Hon'ble Supreme Court, in the case of Sree Panimoola Devi Temple and others Vs. Bhuvanchandran Pillai and others, (2015) 12 SCC 698, has held that if the plaintiffs had not led sufficient evidence to establish their case, as held by the High Court, ordinarily, that should have been the end of the matter and in such circumstances, remand of the suit for de-novo consideration virtually gives to the plaintiffs a second opportunity to establish their case. This Court is of the view that this judgment relied by the learned counsel for the appellant is not applicable on the facts and circumstances of the present case because in the present case the learned Trial Court has failed to follow the due procedure of law and afford opportunity in accordance with law.
24. The Hon'ble Supreme Court, in the case of Jagannathan Vs. Raju Sigamani and Another, (2012) 5 SCC 540, has held that where the Trial Court has disposed of the Suit on merits and the decree is reversed in appeal and the Appellate Court considered that retrial is necessary, the Appellate Court may remand the suit to the Trial Court. The relevant paragraph-7 is extracted here-in-below:-
"(7) Order 41 Rule 23A has been inserted in the Code by Act No. 104 of 1976 w.e.f. February 1, 1977. According to Order 41 Rule 23A of the Code, the Appellate Court may remand the suit to the Trial Court even though such suit has been disposed of on merits. It provides that where the Trial Court has disposed of the Suit on merits and the decree is reversed in appeal and the Appellate Court considers that retrial is necessary, the Appellate Court may remand the suit to the Trial Court."
25. The Hon'ble Supreme Court in the case of P. Purushottam Reddy and Another Vs. Pratap Steels Ltd., (2002) 2 SCC 686 has held that the Appellate Court should be circumspect in ordering a remand when the case is not covered either by Rule 23 or Rule 23-A or Rule 25 C.P.C. and an unwarranted order of remand gives the litigation an undeserved lease of life and, therefore must be avoided. This case is not applicable in the facts and circumstances of the present case because in the present case as discussed above and also as per the findings recorded by the First Appellate Court, the First Appellate Court has rightly and in accordance with law has remanded the case.
26. The Hon'ble Supreme Court, in the case of Maya Devi (Dead) through LRs Vs. Raj Kumari Batra (Dead), (2010) 9 SCC 486, has held that whether or not the Appellate Court should remit the matter is discretionary with the Appellate Court and would largely depend upon the nature of the dispute, the nature and the extent of evidence that may have to be appreciated, the complexity of the issues that arise for determination and whether remand is going to result in avoidable prolongation of the litigation between the parties. The relevant paragraph- 17 is extracted here-in-below:-
"(17). Recording of reasons in cases where the order is subject to further appeal is very important from yet another angle. An Appellate Court or the authority ought to have the advantage of examining the reasons that prevailed with the Court or the authority making the order. Conversely, absence of reasons in an appealable order deprives the Appellate Court or the authority of that advantage and casts an onerous responsibility upon it to examine and determine the question on its own. An Appellate Court or authority may in a given case decline to undertake any such exercise and remit the matter back to the lower Court or authority for a fresh and reasoned order. That, however, is not an inflexible rule, for an Appellate Court may notwithstanding the absence of reasons in support of the order under appeal before it examine the matter on merits and finally decide the same at the appellate stage. Whether or not the Appellate Court should remit the matter is discretionary with the Appellate Court and would largely depend upon the nature of the dispute, the nature and the extent of evidence that may have to be appreciated, the complexity of the issues that arise for determination and whether remand is going to result in avoidable prolongation of the litigation between the parties. Remands are usually avoided if the Appellate Court is of the view that it will prolong the litigation."
27. The Hon'ble Supreme Court, in the case of Narayanan Vs. Kumaran and others, (2004) 4 SCC 26 has held that it is quite safe to adopt that appeal under order 43 Rule (1) clause (u) should be heard only on the ground enumerated in Section 100. The relevant paragraph-17 of the judgment is extracted here-in-below:-
"17. It is obvious from the above rule that an appeal will lie from an order of remand only in those cases in which an appeal would lie against the decree if the Appellate Court, instead of making an order of remand, had passed a decree on the strength of the adjudication on which the order of remand was passed. The test is whether in the circumstances an appeal would lie if the order of remand where it is to be treated as a decree and not a mere order. In these circumstances, it is quite safe to adopt that appeal under order 43 Rule (1) clause (u) should be heard only on the ground enumerated inSection 100. We, therefore, accept the contention of Mr. T.L.V.Iyer and hold that the appellant under an appeal under order 43 Rule (1) clause (u) is not entitled to agitate questions of facts. We, therefore, hold that in an appeal against an order of remand under this clause, the High Court can and should confine itself to such facts, conclusions and decisions which have a bearing on the order of remand and cannot canvass all the findings of facts arrived at by the Lower Appellate Court."
28. This Court in the judgment dated 30.04.2019 passed in the case of Gulab Chand v. D.D.C. reported in 2019 SCC OnLine All 4756 has observed as under:-
"14. This Court has given a thoughtful consideration to rival submissions advanced on both sides. It is true, no doubt, that powers of the Deputy Director of Consolidation under Section 48 of the Act have always been regarded as wide, though inhibited in some regard, being a Court of Revision. The import of the powers of the Deputy Director of Consolidation under Section 48 of the Act as they have been always understood has been succinctly laid down by the Supreme Court in Sheo Nand v. Deputy Director of Consolidation, Allahabad, (2000) 3 SCC 103, where in para graphs 20 & 21 of the report, it has been held:
20. The section gives very wide powers to the Deputy Director. It enables him either suo motu on his own motion or on the application of any person to consider the propriety, legality, regularity, and correctness of all the proceedings held under the Act and to pass appropriate orders. These powers have been conferred on the Deputy Director in the widest terms so that the claims of the parties under the Act may be effectively adjudicated upon and determined to confer finality to the rights of the parties, and the revenue records may be prepared accordingly.
21. Normally, the Deputy Director, in exercise of his powers, is not expected to disturb the findings of fact recorded concurrently by the Consolidation Officer and the Settlement Officer (Consolidation), but where the findings are perverse, in the sense that they are not supported by the evidence brought on record by the parties or that they are against the weight of evidence, it would be the duty of the Deputy Director to scrutinise the whole case again so as to determine the correctness, legality or propriety of the orders passed by the authorities subordinate to him. In a case, like the present, where the entries in the revenue records are fictitious or forged or they were recorded in contravention of the statutory provisions contained in the U.P. Land Records Manual or other allied statutory provisions, the Deputy Director would have full power under Section 48 to reappraise or re-evaluate the 18 evidence-on-record so as to finally determine the rights of the parties by excluding forged and fictitious revenue entries or entries not made in accordance with law.
29. The Supreme Court in the case of Sheo Nand vs. D.D.C., Allahabad, (2000) 3 SCC 103 also said that, it would be the duty of the Deputy Director to scrutinise the whole case so as to determine the correctness, legality or propriety of the orders passed by the authorities subordinate to him.
30. Accordingly, in the light of the contradictory facts which have emerged going to the root of the matter, a proper adjudication was not possible and it is only after verifying the correct facts and recording further evidence the matter could have been adjudicated and for the said reason he has remanded the matter back to the Consolidation Officer for decision afresh.
31. Considering the aforesaid facts, this Court is of the considered view that undoubtedly the Deputy Director of Consolidation is clothed with sufficient power to decide the matter himself but such an exercise of power would be valid when the entire evidence is available on record and merely after oral hearing of the parties, the matter could be adjudicated and decided finally but when the Deputy Director of Consolidation is of the view that further evidence is required to be adduced which may require examination of the witnesses and also the cross examination by the other parties there in such a situation he may exercise such a discretion either to proceed with the matter himself or to remand the matter to the trial court.
32. Accordingly, in the facts of the present case, the Deputy Director of Consolidation has duly considered the entire facts and also clearly recorded the inadequacies and inaccuracies in the essential facts which are available on record which necessitate further re-inquiry and evidence, for which purpose the matter has been remitted to the trial court and such exercise of discretion cannot be faulted.
33. Accordingly, it is for the aforesaid reasons that this Court does not find any infirmity in the order of Deputy Director of Consolidation. In the remand proceedings, the Consolidation Officer shall proceed and decide the matter afresh after adequate evidence and conclude the proceedings, expeditiously, say within a period of three months from date of production of a certified copy of this order.
34. The parties are directed to cooperate in the proceeding.
35. Accordingly, I do not find any infirmity in the impugned order dated 27.06.2025. The writ petition being devoid of merits is hereby dismissed.
(Alok Mathur,J.) Dated: September 26, 2025.
Muk/RKM.