Allahabad High Court
Hari Singh vs Deputy Director Of Consolidation, Etah ... on 21 January, 2000
Equivalent citations: 2000(2)AWC1029, 2000 ALL. L. J. 772, 2000 A I H C 2274, (2000) 2 ALL WC 1029, (2000) REVDEC 203, 2000 ALL CJ 2 1086
Author: Shitla Prasad Srivastava
Bench: Shitla Pd. Srivastava
JUDGMENT Shitla Prasad Srivastava, J.
1. This writ petition under Article 226 of the Constitution of india has been filed by the petitioner for quashing the Judgment and order dated 25.2.1978 passed by the respondent Joint Director of Consolidation (Annexure-3 to the writ petition).
2. Brief facts as stated in the writ petition for the purpose of the present case are that plot Nos. 338, 339. 349 and 351 were recorded in the basic year khataunl in the name of respondent No. 4, Goswami Raghunath Lalji Maharaj and the name of the petitioner was recorded in class 9. The petitioner filed an objection under Section 9 (2) of the U. P. Consolidation of Land Holdings Act and claimed that he be declared sirdar on the basis of the adverse possession. The case of the petitioner was contested by the opposite party on the ground that the petitioner is not in possession, therefore, the entry of class 9 may be rejected. it is stated that the petitioner in order to prove his possession he has filed various revenue receipt of the years 1962, 1963, 1965. 1968, 1973 and 1975 etc. and produced the witnesses, namely, himself and Bhola Singh. The Consolidation Officer dismissed the objection of the petitioner and directed that the name of the petitioner should be expunged, Being aggrieved against the judgment and order of the Consolidation Officer, the petitioner preferred an appeal before the Settlement Officer. Consolidation who allowed the appeal of the petitioner and declared the petitioner to be sirdar over the plots in dispute. Thereafter, the respondent No. 4 filed a revision before the Deputy Director of Consolidation and the Deputy Director of Consolidation allowed the revision setting aside the finding recorded by the Settlement Officer, Consolidation. The petitioner has preferred the present writ petition against the aforesaid judgment of the Depuly Director of Consolidation.
3. Sri S. N. Singh, learned counsel for the petitioner urged his first point that the Deputy Director of Consolidation had no right to set aside the findings recorded by the Settlement Officer, Consolidation in favour of the petitioner while exercising powers under Section 48 of the U.P Consolidation of Land Holdings Act. The second point urged by the learned counsel for the petitioner is that if the Deputy Director of Consolidation was of the view that the findings of fact should be set aside, then he should have remanded the case to the Settlement Officer Consolidation for consideration of the evidence afresh and should not have re-appraised the evidence in exercise of the re visional Jurisdiction. Third point urged by the learned counsel for the petitioner is that when the petitioner had taken plea of adverse possession and had produced oral as well as documentary evidence, then should not have Ignored the same.
4. Sri S. N. Singh, learned counsel for the petitioner, in support of his first point submitted that the Deputy Director of Consolidation had limited jurisdiction under Section 48 of the U, P. Consolidation of Land Holdings Act. His submission is that the Deputy Director of Consolidation has committed error in law in reversing the findings recorded by the Settlement Officer, Consolidation to the effect that the petitioner was in possession and has acquired sfrdari right, for that purpose he had placed reliance on 1994 RD 290, Ram Didar v. Deputy Director of Consolidation, in this case, the power of the Deputy Director of Consolidation under Section 48 of the U. P. Consolidation of Land Holdings Act has been discussed, where it is said that it is clear that the Director had power to satisfy himself as to the legality of the proceedings or of correctness of the proceedings or correctness, legality or propriety of any order, other than interlocutory order passed under the said Act. But in considering the correctness, legality or propriety of the order or regularity thereof, it cannot be assumed to itself, the Jurisdiction of the original authority as a fact finding authority by appreciating for itself of those facts. it has to consider whether the legally admissible evidence had not been considered by the authorities in recording a finding of fact or law or the conclusion reached by it is based -on no evidence, any patent illegality or impropriety had been committed or there was any procedural irregularity, which goes to the root of the matter, had been committed in recording the order or finding.
On the basis of the aforesaid Judgment of the Supreme Court, the learned counsel for the petitioner has urged that when the appellate court considered the revenue entry and recorded the finding of fact that the petitioner was in possession, then if the Deputy Director of Consolidation wanted to reverse the finding, he should have considered the oral evidence also.
5. Sri S. N. Singh, learned counsel for the petitioner has further placed reliance on 1996 RD 216, Krishna Pratap Stngh v. Deputy Director of Consolidation, Faizabad and others. In this case it was held that the jurisdiction with the Deputy Director of Consolidation stands vested under the provisions contained in Section 48 of the Act, cannot be deemed to be such as appellate power as is vested in the appellate authority envisaged under the Act. The revisional power contemplated under Section 48 of the U. P. Consolidation of Land Holdings Act, therefore, must fall short of the appellate power of interference with a finding of fact where the finding of fact depends on the credibility of the witnesses there being a conflict of oral evidence led by the parties. The other case on which the reliance has been placed by the learned counsel for the petitioner is J 999 RD 44, Jan Mohammad v. Deputy Director of Consolidation, Allahabad and others, where the reliance has been placed on Ram Dinar's case (supra) deciding the powers of the Deputy Director of Consolidation. The other case on which the reliance has been placed is 1998 RD 51. Subedar Tiwari v. Deputy Director of Consolidation, Varanasi and others, where it has been held that when two consolidation authorities decided the case concurrently, then it was appropriate that the Deputy Director of Consolidation to remand the case to the Settlement Officer, Consolidation to again appreciate the entire evidence.
6. On the point of consideration of oral evidence, Sri S. N. Slngh has placed reliance on 1981 RD 291, Triioki and others v. Ram Iqbal and others. Earlier entries not in accordance with law does not mean that other evidence regarding possession cannot be looked into. His submission is that if the Settlement Officer. Consolidation has held that the petitioner had acquired right on the basis of the entries of 1371F to 1382F and the Deputy Director of Consolidation was of the view that the revenue entries were in accordance with the provisions of Land Record Manual as the Diary of Lekhpal was not there nor there was mention on the basis of whose order the petitioner was recorded in class 9, it was the duty of the Deputy Director of Consolidation to have examined the oral evidence as oral evidence is also the evidence of possession. The Deputy Director of Consolidation has not mentioned the same, therefore, the order is illegal.
7. Sri G. N. Verma learned counsel appearing for the respondent replied the argument of the learned counsel for the petitioner. He made contention that Section 48 of the U. P. Consolidation of Land Holdings Act was amended on several times. Initially, there was limited power with the Deputy Director of Consolidation but subsequently, he has been given ample power to satisfy himself as to the legality of the proceedings or as to the correctness of the proceedings as to correctness, legality or propriety of any order other than interlocutory order passed by the subordinate authorities under the Act and in case, the Deputy Director of Consolidation has summoned the record, he should appraise the finding of fact on the basis of evidence available on record. His submission is that from the perusal of the order passed by the Deputy Director of Consolidation it will be clear that he had held that the revenue entries were not in accordance with law. therefore, the Deputy Director of Consolidation was right in ignoring those entries in favour of the petitioner. Since he has mentioned the oral evidence also, especially the statement of Lekhpal who has stated that the petitioner was not in possession therefore, the finding of the Deputy Director of Consolidation does not suffer from any error much less error apparent on the face of record and the finding is supported on the basis of evidence and cannot be said to be without jurisdiction. He further submitted that the Deputy Director of Consolidation placed reliance on the oral evidence also and came to the conclusion that the petitioner has failed to prove his possession. Sri Verma has placed reliance on a Judgment delivered by me on 22.2.1999 in Civil Misc. Writ Petition No. 10103 of 1975, Ram Ratan v. Deputy Director of Consolidation and another. This judgment has considered the original Section 48 of U. P. Consolidation of Land Holdings Act as well as amendments made subsequently and then came to the conclusion that the Deputy Director of Consolidation had Jurisdiction to peruse the record and the finding of fact also.
8. Sri S. N. Singh, in reply to the arguments of Sri G. N. Verma has submitted that the Deputy Director of Consolidation should not have acted also as a trial court to reappraise the evidence on record and for that purpose he has placed reliance on the Judgment delivered in Writ Petition No. 1860 of 1976. Ram Deo v. Deputy Director of Consolidation and others, decided on 18.12.1995 by Hon. A. P. Singh, J. as he then was.
9. After hearing the learned counsel for the parties, 1 am of the view that before discussing other points, it is necessary to quote the provisions of Section 48 of the U. P. Consolidation of Land Holdings Act as it was originally enacted and was subsequently amended. The relevant provisions of Section 48 of U. P. Consolidation of Land Holdings Act is quoted below :
"48. Revision and reference.--(1]) The Director of Consolidation may call for and examine the record of any case decided or proceedings taken, where he is of the opinion that a Deputy Director of Consolidation has--
(i) exercised jurisdiction not vested in him in law ; or
(ii) failed to exercise the Jurisdiction vested in him, or
(iii) acted in the exercise of his jurisdiction illegally or with substantial irregularity ;
and as a result of which substantial injustice appears to have been caused to a tenure holder, and he may, after affording reasonable opportunity of hearing to the parties concerned, pass such orders in the case or proceedings as he thinks fit."
There was an amendment in the said section by the U. P. Act No. XXXVIII of 1958 which reads as under :
"48. Power of Director of Consolidation to call for records and to revise orders.--The Director of Consolidation may call for the record of any case if the officer (other than the Arbitrator) by whom the case was decided appears to have exercised a Jurisdiction not vested in him by law or to have failed to exercise jurisdiction so vested, or to have acted in the exercise of his Jurisdiction Illegally or with substantial irregularity and may pass such orders in the case as it thinks fit."
Section 48 was again amended by the U. P. Act No. VIII of 1963, which reads as follows :
(1) Director of Consolidation may call for and examine the record of any case decided or proceedings taken by any subordinate authority for the purpose of satisfying himself as to the regularity of the proceedings ; or as to the correctness, legality or propriety of any order (other than an interlocutory order) passed by such-
authority in the case of proceedings, may, after allowing the parties concerned an opportunity of being heard, make such order in the case or proceedings as he thinks fit.
(2) Powers under sub-section (1) may be exercised by the Director of Consolidation also on a reference under sub-section (3).
(3) Any authority subordinate to the Director of Consolidation may, after allowing the parties concerned an opportunity of being heard, refer the record of any case or proceedings to the Director of Consolidation for action under sub-section (1).
Explanation--For the purpose of this section Settlement Officer Consolidation, Consolidation Officers, Assistant Consolidation Officer, Consolidator and Consolation Lekhpals shall be subordinate to the Director of Consolidation."
10. From a perusal of the Judgment of Consolidation Officer, it is apparent that only question which was to be decided was as to whether the petitioner acquired sirdar right on the basis of the adverse possession. The Consolidation Officer framed the issue as to whether the petitioner has become sirdar on the basis of the adverse possession. The Consolidation Officer considered the entries of 1371F to 1382F and came to the conclusion that entry of 1371F is not in accordance with the rule therefore, the first year entry is not in accordance with the rules. For the 1372F, the Consolidation Officer found the petitioner's name is entered in column No. 5 Varg 9 but there is no khasra No. 1372F and khatauni to prove that the name of the petitioner was ordered to be recorded in class 9 by the Supervisor Kanoongo, therefore, on the basis of the illegal entry, he cannot be held to be sirdar it is significant to mention that the Consolidation Officer has not considered any oral evidence but at the appellate stage, the Settlement Officer Consolidation observed that the Consolidation Officer has committed mistake in not considering the evidence but the appellate court was of the view that in khasra of 137IF to 1378F, the name of the petitioner is entered in remarks column and his name is entered in 1372F in khatauni in Varg 9. therefore, the petitioner has acquired sirdari right. He also came to the conclusion that one Smt. Padmawati was entered as Original tenant, thereafter, the name of respondent No. 4 Goswami Raghunath Lalji Maharaj was entered as original tenure-holder but there is no record as to how the respondent No. 4 became the owner in place of Smt. Padmawati. But none of the two persons took any action to get the entry of class 9 expunged, therefore, the petitioner has acquired, sfrdari right. It is also significant to mention here that Settlement Officer. Consolidation has not considered any oral evidence nor he has mentioned the entries 1371F to 1382F are in accordance with the Land Record Manual or not. The Deputy Director of Consolidation in the opening part of the judgment has mentioned the names of the witnesses examined on behalf of respondent No 4. namely Amar Singh Lekhpal and Rama Kant Arora. He has also mentioned that the petitioner himself examined and one Bhola Nath had further held that the entry of 1371F is not in accordance with the law as the procedure for issuance of P.A. 10 was not adopted and further the entry of 1372F is without any order of the competent authority. He has considered the statement of Bhanwar Singh Lekhpal on the point of possession. He has observed that the Lekhpal has said that Hart Singh is not in possession. He has further observed that the oral evidence cannot stand against the documentary evidence. He has also made observation that ft was for the petitioner to prove that his entry was made after adopting the procedure of issuance of P.A. 10. He has held that entry is in accordance with law.
11. It is clear from the Judgment that he has not discussed the statements of the petitioner's witness namely. Bhola Singh and Hari Singh himself, rather he has simply mentioned their names. The respondents have filed counter-affidavit along with the statement of Hari Slngh. The petitioner along with the supplementary affidavit has filed the certified copies of the statement of himself and one Bhola Slngh and also statements of Amar Slngh Lekhpal and Rama Kant Arora. From the perusal of the aforesaid statements. It is apparent that these witnesses deposed on oath regarding the possession over the land in question, therefore, their statements cannot be said to be Irrelevant or of no value. From a perusal of the Judgment of the Deputy Director of Consolidation, as stated above. It is clear that he has not considered the oral evidence in details rather has only mentioned the names of the witnesses. It is true that entry in revenue records must be in accordance with the provisions of Land Record Manual. The oral evidence has also got evidentiary value. In the present case, the oral evidence was adduced which was not considered by the Consolidation Officer and the Settlement Officer, Consolidation at all and the Deputy Director of Consolidation simply mentioned the names of the witnesses and not discussed the oral evidence or its evidentiary value rather decided the case on the basis of entries which according to him was not in accordance with law.
12. 1 am of the view that it is a fit case in which the Deputy Director of Consolidation should be directed to decide the matter afresh in accordance with law. The question as to whether the Deputy Director of Consolidation had Jurisdiction to re-
appraise the evidence has already been answered by me in the case, referred to above (Rama Ratan case), therefore, there cannot be any doubt that the Deputy Director of Consolidation has no jurisdiction to discuss the evidence. I, therefore, allow the writ petition and set aside the judgment and order dated 25.2.1978 passed by the respondent No. 1, Annexure-3 to the writ petition and remand the case to Deputy Director of Consolidation to decide the matter afresh in accordance with law. There will no order as to costs.