Allahabad High Court
Sant Bux Singh ... vs Deputy Director Of Consolidation ... on 29 July, 2010
Author: Yogendra Kumar Sangal
Bench: Yogendra Kumar Sangal
1 AFR RESERVED Court No. - 10 Case :- REVIEW PETITION No. - 264 of 2006 Petitioner :- Sant Bux Singh (W.P.No.1082/Cons/2005) Respondent :- Deputy Director Of Consolidation Lucknow And Another Petitioner Counsel :- S.K.Mehrotra Hon'ble Yogendra Kumar Sangal,J.
This Review Petition was filed by the petitioner of Writ Petition No. 1082 (Cons.) of 2005 Sant Bux Singh vs. Deputy Director of Consolidation with the prayer to recall the judgement and order passed in the Writ Petition dated 3rd July, 2006 by this Court.
The aforesaid writ petition was filed by the petitioner with the prayer to set aside the orders dated 12.03.1999 passed by the C.O. (Consolidation Officer) rejecting his Objection under Section 9 of the Consolidation of Holdings Act (hereinafter referred to as the 'Act'), 30.08.2003 passed by the S.O.C. (Settlement Officer Consolidation) dismissing the Appeal and also another order passed by the D.D.C. (Deputy Director of Consolidation) dated 23.07.2005 dismissing the Revision also.
Undisputed facts of the case are that one Garibe S/O Jodha was recorded tenure-holder of Plot Nos. 56, 60 and 45 in the basic year in revenue record when the Consolidation operation was started in the area where this land situated. In the record on land of Plot Nos. 56 and 45 name of Garibe was recorded as sole tenure-holder while on the land of Plot No. 60 his name was recorded as co-sharer along with other tenure-holders. Garibe S/O Jodha had 2 died on 05.05.1985. Sant Bux Singh, the petitioner his Nephew i.e. Son of real Brother of Garibe while respondent no. 2, Smt. Bindeshwari is daughter's married daughter of Garibe. Petitioner claimed himself by filing objection under Section 9 of the C.H. Act entitled to be recorded tenure holder on the land of Garibe on the basis that no other male member in the family of Garibe except him surviving. Later on he also claimed by amendment in objection that he is entitled to get recorded his name in the revenue record on the basis of last Will executed by Garibe on 28.04.1985. This prayer of amendment in Objection was earlier rejected by the C.O. and also by the S.O.C. in Appeal but later on in Revision, D.D.C. had allowed it and permitted to amend his Objections as prayed.
On the other hand, respondent no. 2 Smt. Bindeshwari also claimed herself heir of Garibe on the basis of another Will registered on 17/18.05.1982 and executed by Garibe and filed Objection to record her name on the land in dispute. Both the parties filed documents and led oral evidence in support of their respective cases before the C.O. After going through evidence on record C.O. rejected the claim of Sant Bux Singh and ordered to enter the name of Smt. Bindeshwari Devi in place of Garibe in record on the basis of Will in her favour. Appeal filed before the S.O.C. and Revision filed before the D.D.C. by petitioner both were also dismissed. Writ Petition No. 1082(Cons.) of 2005 was filed challenging the aforesaid three orders but the same was also dismissed. Aggrieved by this order, the instant Review Petition has been filed by Sant Bux Singh.
Undisputedly, this Review Petition was filed well within time. For disposal of the Review Petition Notice was served on the counsel for the 3 respondent No. 2, Shri Pankaj Gupta through counsel for petitioner applicant who appeared on the date fixed for hearing. He has not pressed for time to file objections in the review case. File of the writ petition already available. On the request of parties' counsel their arguments as well as of learned Standing Counsel were heard on merit and record was perused.
It was argued on behalf of the review petitioner that this Court while dismissing the writ petition not considered the points raised on behalf of the petitioner and decided the matter on the points which were not raised from the petitioner's side. It was further argued that Supplementary Affidavit filed on behalf of the petitioner vide Application No. 725(W) of 2006 and documents annexed with it, although the same was replied on behalf of the respondent no. 2 through counter affidavit, were not taken into consideration by this Court. In the Supplementary Affidavit it was pointed that Consolidation Officer referring the order dated 21.12.1992 passed by the Additional Munsif 3rd in civil case pending between the parties in civil court wrongly observed that the Munsif court had believed the Will in favour of Smt. Bindeshwari by Garibe and held it reliable. The above finding recorded by the Consolidation Officer was totally incorrect as the above court did not record any such finding about the above Will in his order dated 21.12.1992 and he had annexed the certified copy of order as Annexure S-2. This incorrect finding affected the final judgment of C.O. This aspect of case was not taken into consideration by the Court while deciding the writ petition.
Copy of the Will executed by Garibe in favour of the petitioner was also available filed along with the Supplementary Affidavit and from its perusal, it is clear that detail of immovable properties which were bequeathed by Garibe 4 in favour of the petitioner are given in Paragraph 1. Arrangement for the maintenance and livelihood of daughter of Garibe namely Dashrath Devi was also made in the Will in Paragraph 3 where it is said that she will live in the house (also bequeathed to petitioner) during her life time and Sant Bux will maintain her during this period. Only after her death possession of the house will be taken by Sant Bux or his heirs. Learned counsel for the applicant argued that when such conditions were there in the Will, if Sant Bax failed to maintain her during her life time, Law will take its own course and Dashrath Dei will be in a position to get enforced conditions through legal proceedings. There is also specific averments in the Will why he is bequeathing his property in favour of Sant Bux. It was also specially mentioned in the last two lines that earlier Will executed by him shall stand revoked /cancelled and this is his last Will. Learned counsel for the review-petitioner argued that all these facts detailed in the Will clearly shows that some how these were escaped from the notice of the Court when the impugned judgement was pronounced which is apparent error on the face of record because it was observed in it that these details are not there in Will and this error effected the decision. On the other hand, learned counsel for the respondent no. 2 argued that after going through the record impugned order was passed. I have gone through the copy of the Will available on record and found that details are there and this grave and apparent error arose in the judgement. It appears that availability of the supplementary affidavit was escaped from the notice of this Court while passing the impugned order.
It was further argued that undue emphasis was given on this point by the Consolidation Authorities and also taken into consideration by this Court also 5 while dismissing the writ petition that Will in favour of the respondent no. 2 is a registered one while Will executed in favour of the review-petitioner is an un-registered document. Law is clear on this point as held by the Apex Court in 2005 (1) SCC 40 Daulatram Vs. Shodha and others and also in AIR 1962 Supreme Court 567 Rani Purnima vs. Kunwar Khagendra, that mere fact a Will is registered Will not by itself is sufficient to dispel all suspicion regarding it. Learned counsel for the petitioner argued that it was not seen either by the Consolidation Authorities and also by this Court in dismissing the writ petition that at the time of registration of the Will in favour of respondent no. 2, whether it was checked by the Registration Authority that Testator knew that it is Will being executed which he is admitting and signing the same. It is also to be seen that the Officer registering the Will read it over to the testator or not and the testator admitted the execution before the Officer registering the Will, but not clear from the record whether these facts were seen and considered. In Daulatram Case, the Apex Court upheld the genuineness of un-registered Will revoking/cancelling the earlier registered Will .
Civil Suit was pending between the parties which is clear from the record. Two Wills executed in favour of the parties by Garibe were also in dispute in that Civil Suit, it is also clear from the record and also not disputed by the parties counsel at the time of arguments. Consolidation Authorities and also this Court while deciding the Writ Petition has not taken pre-caution to avoid the contradictory finding which may be possible by two courts i.e. Consolidation court and also by the Civil Court in the pending suit regarding the same Will. It is also in the finding of the Consolidation Officer that there 6 was one own Son of Garibe, where he has gone and why his rights about the property and his maintenance not considered by the Consolidation Officer when interest of daughter of Garibe was considered, it is also not clear from the record.
Another fact taken into consideration by the Consolidation Authorities and by this Court was that after filing his first Objection before the Consolidation Officer, petitioner got amended his Objection and he had pleaded case of Will in his favour by Garibe after two years. It is correct that there is delay on the part of Sant Bux in this regard but his amendment application which was firstly rejected by the Consolidation Officer then the Appeal filed was also dismissed by the S.O.C. was allowed the by the D.D.C. in Revision filed and he was permitted to plead case of Will in his favour by Garibe about the property in dispute. It is established Law that amendment in the pleading relates back to the date of presentation of the plaint or Written Statement. Moreover, this Court in 1984 92) L.C.D 319 Zazbalnisa Vs. Bachchu and others held that a Will relied upon by the Objector cannot be rejected merely on the ground that there was no reference of it in the Objections filed on his behalf. Moreover, after this amendment, respondent no. 2 was allowed sufficient time to file reply of the same and she did so. Later on fresh issues were framed and evidence of the parties was recorded on this point. There will be any material effect of this delay on his part in raising this plea in these circumstances it was also not considered.
From the record it is clear that Garibe has also revoked his first Will deed bequeathing his property in favour of one Deen Dayal and by 2nd Will deed he bequeathed his property in favour of respondent no. 2. Now, if he 7 again revoked his this Second Will and bequeathes his property in favour of the petitioner how it matters. Sant Bux is also not an unknown person to the family of Garibe. He is son of his real Brother and he claimed that he is the only surviving male member in the pedigree of Garibe. Reasons are there in Will-deed why he is bequeathing property in his favour. Learned counsel for the applicant argued that these circumstances were also not considered by the Consolidation Authorities and also by this Court at the time of disposal of the Writ Petition. It appears that simply seeing concurrent findings of Consolidation authorities, writ petition was dismissed. My attention was drawn by the learned counsel for the review-petitioner on the case Law reported in LCD 1999 (17) 134 Smt. Ram Devi Vs. 8th Additional District Judge, Kanpur which was also referred in the impugned judgement where this Court has laid down as follows :
"Constitution of India, Article 226 ................... concurrent decisions, interference in....Held, it is the duty of the court to examine the material and do justice between the parties.............. It will be denial of justice, if court acts on computerized system of administration of justice by just affixing a rubber stamp of approval on concurrent decisions merely on the ground that they are based on findings of the fact."
With reference to the above Law, learned counsel for the petitioner argued that it is denial of justice, in the present case also, because for the reasons attention of the court escaped from the the facts detailed in the Will executed by Garibe in favour of Sant Bux where all these details were given which are said not given in the Will by Garibe in the impugned judgment. 8
Learned counsel for the respondent No. 2 argued that Review Petition is not maintainable against the impugned order. Learned counsel for the petitioner argued that there is nothing in Article 226 of the Constitution of India to preclude the High Court from exercising the power of Review which inheres in every court of the plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. It may be exercised where some mistake or error apparent on the face of record is found and it may also be exercised on any analogous ground.
In case, 2001 (19) LCD 527 M.M. Thomas Vs. State of Kerla, Apex Court held that if any apparent error is noticed by the High Court in respect of any order passed by it, the High Court has not only power but a duty to correct it. The High Courts power in that regard is plenary. High Court is court of record has inherent powers to correct the record. The burden to prove that Will in favour of Sant Bux executed by Garibe was forged or was obtained by undue influence or by playing fraud was on respondent no. 2. It was also to be seen whether respondent no. 2 has discharged its burden or not. It was argued that this important aspect of the matter was also not considered in deciding writ petition.
Learned counsel further argued that court of Deputy Director of Consolidation is final court in the matter of Consolidation proceedings. When a revision is presented before the Deputy Director of Consolidation, it is expected from the court that it would take notice of the case of the parties and also evidence adduced by them and after taking into consideration the findings of the Courts below by giving his own finding and reason in brief on the points in dispute, the final order will be passed. Learned counsel for the 9 petitioner argued that if we go through the judgment delivered by Deputy Director of Consolidation, we will find only in last 10 lines conclusion has been drawn without discussing evidence in brief that lower courts have taken into consideration the facts and circumstances of the case and evidence available on the record and scrutinized the evidence properly and he is in agreement of the findings of the courts below. He has not given his own finding even in brief why the Will in favour of Sant Bux executed by Garibe is not reliable and should not given effect. He just acted on computerized system of administration of justice by just affixing a rubber stamp of approval on the concurrent decisions merely on the ground that they are based on the findings of fact. This cannot be said judgement in the eyes of Law. Learned counsel further argued that this aspect of the case also not seen in the matter while deciding the writ petition.
From the above discussions and circumstances and also taking into consideration the arguments of the parties' counsel I am of the view that argument raised by the learned counsel for appellant are not without force and has some subsistence. There are sufficient reason to exercise the power of reopen the matter in the interest of justice. There is mistake and also self- evident error on the face of the record in the impugned order. The same is hereby recalled. The application to review the impugned judgement is allowed. Writ Petition be registered on its original number and be listed again for hearing before appropriate Bench. Needless to mention that the matter in writ shall be decided afresh and any observation made in this judgment regarding merit of the case will not come in the way of the appropriate bench. 29.07.2010 Kaushal