Allahabad High Court
Smt Ram Dei vs Joint Director Of Consolidation And ... on 23 April, 2020
Equivalent citations: AIRONLINE 2020 ALL 990
HIGH COURT OF JUDICATURE AT ALLAHABAD At Residence Reserved A.F.R. Case:- WRIT - B No. - 3934 of 1985 Petitioner:- Smt Ram Dei Respondent:- Joint Director of Consolidation And Ors. Counsel for Petitioner:- A.K. Rai,V.K. Rai,V.K. Singh Counsel for Respondent:- S.C.,A.R. Dubey,L.P. Singh,S. Rai Hon'ble J.J. Munir,J.
1. This writ petition questions a non-concurrent determination of objections under Section 9-A(2) of the Uttar Pradesh Consolidation of Holdings Act, 1953 (for short, the Act) by the Consolidation Authorities.
2. The objections were brought by the petitioner, Ram Dei, since deceased and represented by her LRs, against one Smt. Sona Kunwar, represented before this Court by Ramji Tiwari, since deceased. Ramji Tiwari, original respondent no. 3 to this writ petition, is now represented by his heirs and legal representatives, substituted pendente lite. The objections also sought relief against respondent nos.4 and 5, that is to say, Jagardev Tiwari and Mukhdev Tiwari. Both these respondents have died pending this petition and are represented by their heirs and legal representatives. Before this Court, the claim of the petitioner is confined to the interest of Ramji Tiwari in terms morefully set out hereinafter. So far as respondent nos.4 and 5 are concerned, it appears that parties have buried the hatchet and are at peace with the way the event has gone before the Authorities below. Thus, there appears to be no conflict or lis inter se the petitioner on one hand and respondent nos.4 and 5 on the other, before this Court. So far as respondent no.6 is concerned, the said respondent asserts herself to be Sona Kunwar, mother of the third respondent and wife of one Sarju Tiwari. This Sona Kunwar has been called an impostor by another woman, who contested these proceedings and claimed to be the real Sona Kunwar. Sona Kunwar's interest is represented by respondent no.3, now before this Court through his legal representatives.
3. The dispute in this petition relates to agricultural land located in two different villages of District Ghazipur. One of these is Khata no.52, admeasuring 2 bigha 2 biswa 5 dhoor, situate at Village Sindura, Pargana Jamania, District Ghazipur. In the basic year, this Khata was recorded in the name of Ram Naresh Tiwari son of Devi Tiwari, Smt. Ram Dei Kunwar wife of Basdev Tiwari and Smt. Sona Kunwar daughter of Ram Swarup Tiwari and wife of Sarju Tiwari. The other part of land, subject matter of dispute between parties is located at Village Kusi, Pargana Jamania, District Ghazipur. It comprises Khata nos.245 and 542, admeasuring a total of 7 bighas 17 biswas 2 dhoors. In the basis year, it is recorded in the name of Jagardev Tiwari and Mukhdev Tiwari, both sons of the late Ram Naresh Tiwari, Smt. Ram Dei Kunwar wife of Basdev Tiwari and Smt. Sona Kunwar daughter of Ram Swarup Tiwari, wife of Sarju Tiwari.
4. The land above described above, shall hereinafter be called as ''the Khata in question'.
5. It would be apposite to indicate the relationship between parties traceable to their ancestors before setting out the origin and course of proceedings, that have led to this petition. Ram Swarup Tiwari, Mathura Tiwari and Ram Naresh Tiwari were brothers. The Khata in question is part of an ancestral holding of these brothers, the fuller detail of which may not be very relevant. Sona Kunwar is the daughter of Ram Swarup Tiwari. Her mother is Smt. Phula Kunwar, wife of Ram Swarup Tiwari. Smt. Ram Dei Kunwar (the petitioner) is wife of Basdev Tiwari son of Mathura Tiwari. Jagardev Tiwari and Mukhdev Tiwari are sons of the late Ram Naresh Tiwari. It appears that Ram Swraup Tiwari died sometime before the year 1938, and Smt. Phula Kunwar inherited his rights in the then larger joint khata of the family, comprising his brothers and co-laterals. It is common ground between parties that Phula Kunwar sued for partition, that led to a partition decree dated 31.03.1938. This decree brought Smt. Phula Kunwar a share of 1/6th in the joint khata of her husband's two brothers and co-laterals. The aforesaid 1/6th share in the erstwhile joint khata, that came to be partitioned and fell to the share of Smt. Phula Kunwar vide decree dated 31.03.1983, makes for the land in dispute.
6. It appears from some stray remark in the judgment of the Consolidation Authorities that during the lifetime of Smt. Phula Kunwar, her rights to the land in dispute were questioned, despite the partition decree. This was done by some members of the family, like one Basgit and some others, but that is of no consequence. The land in dispute came to be recorded in the name of Smt. Phula Kunwar during her lifetime and her right to it is not in question. Phula Kunwar had a lone child, a daughter Smt. Sona Kunwar. Smt. Sona Kunwar was married to Sarju Tiwari. Smt. Sona Kunwar had a son, Ramji Tiwari and a daughter, Shiv Kumari. Ramji Tiwari son of Sarju Tiwari and Smt. Sona Kunwar is the third respondent here. There is no claim or issue about the land in dispute on behalf of Shiv Kumari. Smt. Phula Kunwar admitted Ramji Tiwari, her daughter's son as a co-tenant along with herself, in the land in dispute. This was done with the permission of the then Zamindar. In consequence, the name of Ramji Tiwari came to be recorded as a co-tenant along with Smt. Phula Kunwar. Smt. Phula Kunwar passed away on 25.11.1958 intestate. Immediately before Phula Kunwar's death, the land in dispute was jointly held by Ramji and Smt. Phula Kunwar, with each co-sharer holding a half share. Upon Smt. Phula Kunwar's death, her share was inherited by her daughter, Smt. Sona Kunwar, Ramji's mother.
7. It appears that there was some resistance to Smt. Sona Kunwar's right to inherit Smt. Phula Kunwar, her deceased mother. This resistance was put up by co-laterals of Phula Kunwar's father. It did not take the form of an outright suiting of rights in an action for title. Rather, it came about in the form of a mutation application made on behalf of Kapil Dev, Basgit and Ambika on 16.12.1958, asking to be mutated in place of the late Phula Kunwar. In those proceedings, Sona Kunwar was ordered to be mutated in place of Smt. Phula Kunwar. It is recorded for a fact in the Consolidation Officer's order that Smt. Sona Kunwar did not apply for mutation in her favour. However, mutation in her favour was made on 30.09.1959. It does not appear that co-laterals of Sona Kunwar's mother's father, who initially applied for mutation upon Phula Kunwar's death, pursued the matter any further. However, before mutation in favour of Smt. Sona Kunwar regarding her half share in the land in dispute, inherited from her mother could be carried out, Ramji executed a registered sale deed on 14.09.1959, relating to the land in dispute (the entire land that was the joint holding of himself and his maternal grandmother, Smt. Phula Kunwar) in favour of Smt. Ram Dei Kunwar and Ram Naresh. Smt. Ram Dei Kunwar, the petitioner here, made an application for mutation on the basis of the last mentioned sale deed. The application was objected to by Smt. Sona Kunwar. The Sub-Divisional Officer passed an order granting mutation in favour of Smt. Ram Dei to the extent of Ramji's share, that is to say, half share in the land in dispute, whereas the other half was allowed to stay back with Smt. Sona Kunwar on the basis of succession. This order was passed by the Sub-Divisional Officer in mutation proceedings on 16.12.1960. The last mentioned order was appealed by Smt. Ram Dei to the Commissioner of the Division. The appeal was dismissed and the mutation order was affirmed by the Commissioner vide his order of February the 22nd, 1961. Just a few days before the Commissioner decided the mutation appeal, the petitioner claimed that a registered sale deed dated 15.02.1960 was executed in her favour by Smt. Sona Kunwar, relating to that half share of the land in dispute, without which the Mutation Authority of first instance had determined that it would go by succession to Smt. Sona Kunwar.
8. It must be remarked here that the petitioner's stand about this sale deed is that it was secured from Smt. Sona Kunwar ex abundanti cautela. This stand is founded on the reasoning that Ramji, in fact, held title to the land in dispute in its entirety and nothing went to Smt. Sona Kunwar, but to avoid uncertainties of litigation, the petitioner took the half share from Smt. Sona Kunwar through the registered sale deed dated 15.02.1960. It must also be remarked here that the contrary stand of Smt. Sona Kunwar, now represented by respondent no.3 through his legal representatives, is that the sale deed dated 15.02.1960 was never executed by Smt. Sona Kunwar. Rather, the said sale deed is a bogus document, secured by setting up an impostor in place of Smt. Sona Kunwar. This is a matter about which the parties are much at issue, and details about it would figure a little later in this judgment.
9. After dismissal of the appeal by the Commissioner from the Sub-Divisional Officer's order regarding mutation vide order dated 22.02.1961, the petitioner, Smt. Ram Dei applied for mutation afresh on 31.04.1961. This claim was apparently founded on the sale deed dated 15.02.1960, purportedly executed by Smt. Sona Kunwar for her half share. This mutation application was brought arraying Smt. Sona Kunwar as the opposite party, properly so called. The application was rejected by the Sub-Divisional Officer by an order dated 18th January, 1963.
10. Smt. Ram Dei, failing in her endeavour to secure mutation over the entire land in dispute, that is to say, one that included the share inherited by Smt. Sona Kunwar, filed a declaratory suit under Section 229-B of the U.P. Z.A. & L.R. Act. By her suit aforesaid, Smt. Ram Dei claimed declaration of title to the land in dispute on the basis of registered sale deed dated 14.09.1959 from Ramji and the sale deed dated 15.02.1960, claimed to have been executed in her favour by Smt. Sona Kunwar. The suit aforesaid was tried and dismissed by the Sub-Divisional Officer vide his judgment and decree of October, the 29th 1965. The said decree was appealed to the Commissioner by Smt. Ram Dei. The appeal was dismissed by the Additional Commissioner, Varanasi Division, Varanasi vide judgment and decree dated 30.12.1966. The Appellate Court held Smt. Sona Kunwar entitled to a half share in the land in dispute, whereas the other half was held in favour of Smt. Ram Dei and Ram Naresh, the assignees from Ramji. A further appeal was carried to the Board of Revenue from the appellate decree by Smt. Ram Dei, the petitioner. Pending the aforesaid second appeal before the Board of Revenue, consolidation proceedings were notified, under Section 4(2) of the Act, leading to abatement of the appeal.
11. Post abatement of her second appeal, the petitioner brought these objections under Section 9-A(2) of the Act on 21.09.1970. The case of the petitioner in her objections as briefly extracted in the order of the Consolidation Officer, is this: Ramji was admitted as a co-tenant by Smt. Phula Kunwar in the land in dispute with the permission of the Zamindar. A Praman Patra was issued in favour of Ramji, that shows him to be a co-tenant along with his maternal grandmother, Smt. Phula Kunwar. Smt. Phula Kunwar died on 25.11.1958. In consequence of her death, the land in dispute, that is to say, the entire khata devolved upon Ramji, whereof he became the sole bhumidhar, under Section 174 of the U.P. Z.A. & L.R. Act. Ram Dei purchased the land in dispute from Ramji on 14.09.1959 through a registered sale deed. The petitioner has acquired bhumidhari rights relating to the land in dispute through the aforesaid conveyance. The further case appears to be that the petitioner entered possession of the land in dispute to the extent of the whole of it on the basis of the sale deed dated 14.09.1959, executed by Ramji. However, a subsequent sale deed dated 15.02.1960 was got executed by Smt. Sona Kunwar, in order to avoid litigation.
12. Some amendment to the objections was sought which does not appear to say anything to add to the case. It was nevertheless allowed by the Consolidation Officer. However, in consequence of the amendment, Ramji was made a party to the objections. It is recorded by the Consolidation Officer that Ramji, respondent no.3, now represented by his LRs, did not appear or file a written statement. The case is recorded to have proceeded ex parte against Ramji before the Consolidation Officer. It was ordered to so proceed vide order dated 11.01.1970.
13. Smt. Sona Kunwar - one of the two Sona Kunwars - contested the objections with the case that she has succeeded to a half share in the land in dispute, that is to say, the share of her mother, Smt. Phula Kunwar; the remaining half share being held by her (Sona Kunwar's) son, Ramji. It appears to have been pleaded by Smt. Sona Kunwar before the Consolidation Officer that the petitioner's suit under Section 229-B, based on the same cause of action, was tried and dismissed. Her appeal from the Court of first instance failed before the Additional Commissioner. It is also her further case that no appeal from the appellate decree was preferred by the petitioner, resulting in the petitioner's claim being barred by res judicata. This Sona Kunwar urged that the petitioner's objections be rejected.
14. Before the Consolidation Officer on 17.10.1970, another woman claiming herself to be Sona Kunwar, appeared in Court and sought impleadment. She admitted the execution of the sale deed dated 15.02.1960 by her and urged that she is the real Sona Kunwar, wife of Sarju Tiwari and Ramji's mother.
15. On the pleadings of parties, the Consolidation Officer framed the following issues:
"(1) Whether Smt. Ramdeo Kunwar (sic Ram Dei) took sale deed from Smt. Sona Kunwar and she is in possession?
(2) Whether the name of Smt. Sona Kunwar is fictitiously recorded?
(3) What is the share of the parties?
(4) What is the share of the parties?
(5) Whether Smt. Sona Kunwar or Ramji had right to executed (sic execute) the sale deed?
(6) Which of the two Sona Kunwar is genuine Sona Kunwar and its effect?"
16. The petitioner, Ram Dei examined four witnesses in support of her case, which does not include herself. She filed eight documents on 06.08.1971. Smt. Sona Kunwar, who supported execution of the sale deed dated 15.02.1960 in favour of the petitioner, examined two witnesses in support of her case, including herself. She filed eight papers on 06.08.1971, that constitute her documentary evidence. She was represented before the Consolidation Officer by Sri Bachchu Singh, Advocate. She is described by the Consolidation Officer and by the other Consolidation Authorities in the judgments impugned in a rather long-winded description, that says "Sona Kunwar represented by Sri Bachchu Singh, Advocate". This Sona Kunwar is impleaded as respondent no.6 to this petition. For ease of reference, the Sona Kunwar, last mentioned, who supports the petitioner's case, shall hereinafter be called, ''Sona Kunwar-I'. The other Sona Kunwar, who contested the objections, examined herself in the witness-box, besides five other witnesses. This Sona Kunwar filed some 101 papers by way of documentary evidence. She was represented before the Consolidation Officer by Sri Mohd. Taufiq Khan, Advocate. Again, she is identified in the judgment of the Consolidation Officer and the Superior Consolidation Authorities by reference to her learned Counsel's identity. In this judgment, Sona Kunwar, who contested the petitioner's claim, shall be called, ''Sona Kunwar-II'. These references to Sona Kunwar as ''I" or "II", shall figure hereinafter where the issue related to her identity is considered; elsewhere she would be referred to as ''Sona Kunwar'.
17. The Consolidation Officer tried the objections and allowed the petitioner's claim by his judgment and order dated 04.06.1972. He ordered the name of Smt. Sona Kunwar to be expunged from the land in dispute, and a fortiori from the khata in question. It was furthered ordered that in the khata in question, the name of Ram Dei, the petitioner be recorded to the extent of a 4/5th share in both villages, whereas a 1/5th share be recorded in the name of Jagardev and Mukhdev, sons of Ram Naresh. Noting the fact that the name of Ram Naresh, since deceased, continued to be recorded in the khata relating to Village Sindura, it was ordered to be expunged and the names of Jagardev and Mukhdev, sons of Ram Naresh, entered.
18. From the aforesaid judgment of the Consolidation Officer, five appeals were carried to the Settlement Officer of Consolidation; two by Smt. Sona Kunwar and three by the petitioner, Ram Dei. Smt. Sona Kunwar's Appeals were numbered as 1862 and 1863 whereas those by the petitioner, Ram Dei, were numbered as Appeals nos.1895, 1896 and 1897. Smt. Sona Kunwar by her two appeals sought reversal of the judgment of the Consolidation Officer to the extent her name was ordered to be expunged for her half share in the land in dispute. The appeals were two in number, inasmuch as the land in dispute was located in two different villages. The petitioner's appeals sought exclusion of the names of Jagardev and Mukhdev, sons of Ram Naresh, on ground that the petitioner was entitled to the entire land comprising the khata in question that she had purchased from Ramji, who had title to the whole of it.
19. The Settlement Officer of Consolidation heard and determined the five appeals vide judgment and order dated 04.12.1972, in the manner that Smt. Sona Kunwar's appeals were allowed and the petitioner's appeals, numbering three, were dismissed. The Settlement Officer of Consolidation declared a share for the parties in the manner that the petitioner, Ram Dei was held entitled to a 2/5th share in the khata in question, whereas Jagardev and Mukhdev were found to have a 1/10th share. Smt. Sona Kunwar was entitled to a half share in the said khata. This determination of shares in the Khata in question was made on the basis that Smt. Sona Kunwar was entitled to a half share in the land in dispute. It must be remarked here that it is not clear how a half share in the land in dispute led the Settlement Officer to determine a half share for Smt. Sona Kunwar in the Khata in question. This Court says so as the case of the parties is about a dispute whether Smt. Sona Kunwar holds a half share in the land in dispute or none at all. Even if, Sona Kunwar is held to have a half share in the land in dispute, it is not indicated in the order of the Settlement Officer how that half share would extend to the Khata in question that is much larger than the land in dispute.
20. The petitioner, Ram Dei assailed the judgment and order of the Settlement Officer of Consolidation through five revisions, under Section 48 of the Act, that she preferred to the Deputy Director of Consolidation, Ghazipur. These revisions were numbered as Revisions nos.465, 581, 464, 463 and 366. Of these five revisions, two revisions were referable to the appellate judgment rendered in the appeal preferred by Smt. Sona Kunwar, by which the Consolidation Officer's order directing her name to be expunged from the land in dispute was set aside, granting Sona Kunwar a half share. The other three revisions were directed against that part of the appellate judgment by which the petitioner's claim to exclude Jagardev and Mukhdev was rejected by the Settlement Officer of Consolidation. All the revisions were heard together by the Deputy Director of Consolidation with Revision no.581 being treated as the leading case. The Deputy Director of Consolidation by his judgment and order dated 26.02.1985 dismissed all the revisions and affirmed the Settlement Officer of Consolidation.
21. Disillusioned by the Revisional and the Appellate orders, the petitioner has instituted this writ petition.
22. Heard Sri Vishnu Singh, learned Counsel appearing on behalf of the petitioners and Sri Bhola Nath Yadav, learned Counsel appearing on behalf of respondent nos. 3/1, 3/2 and 3/3. No one has appeared at the hearing on behalf of the heirs and legal representatives of respondent nos. 4, 5, as also respondent no.6.
23. The Court has perused the writ petition, the two counter affidavits filed on behalf of respondent nos. 3/1 to 3/3 and the relative rejoinder affidavits.
24. Sri Vishnu Singh, learned Counsel for the petitioners has assailed the judgments of the Revisional and the Appellate Authorities on various counts. The foremost that he urges is based on a development that took place in the mortal course of human nature. He has invited the attention of the Court to the Revisional Authority's judgment, where it is recorded that Smt. Sona Kunwar died pending revision and her interest is now represented by Ramji, her son. Sri Vishnu Singh has made it bold to say that even if it be assumed that when Ramji executed the sale deed dated 14.09.1959, relating to the whole of the land in dispute, he had no more title than to a half share in it, the petitioner's claim now stands established owing to the supervening death of Sona Kunwar. He submits that if the third respondent's case were accepted that at the time of execution of the sale deed of 1959 all that Ramji could transfer was a half share in the land in dispute, the other half being inherited by Smt. Sona Kunwar from her mother, once Ramji has inherited the remainder from Smt. Sona Kunwar, pending proceedings before the Revisional Authority, he is bound by his deed of 1959 to the extent of whole of the land in dispute. According to the learned Counsel for the petitioners the supervening acquisition of title by Ramji for the deficient half from his mother, if that be the case, makes the sale deed of 1959 an effective conveyance for the whole of the land in dispute by dint of the principle known as, "feeding the estoppel". He submits that the right based on this principle flows from the provisions of Section 43 of the Transfer of Property Act, 1882. According to the learned Counsel, the principle embodied in Section 43 (supra) mandates that a transferor's interest in immovable property, who fraudulently or mistakenly represents that he holds a certain interest in the property which, in fact, he does not have but subsequently acquires, goes to the transferee who has taken the property believing the representation, whether mistaken or fraudulent, to be true. In these circumstances, according to the learned Counsel, the transferor cannot be heard to say that at the time he made the transfer, he had no interest in the subject matter of conveyance. Once he acquires the non-existent interest, transferred by his solemn deed, the subsequently acquired interest would go to the transferee.
25. Sri Vishnu Singh, learned Counsel for the petitioners has relied on a decision of the Supreme Court in Hardev Singh vs. Gurmail Singh (dead) By LRs, (2007) 2 SCC 404. He has invited this Court's attention to paragraphs 14 and 15 of the report in Hardev Singh (supra), where it is held:
"14. The doctrine of feeding the estoppel envisages that "where a grantor has purported to grant an interest in land which he did not at the time possess, but subsequently acquires, the benefit of his subsequent acquisition, goes automatically to the earlier grantee, or as it is usually expressed, feeds the estoppel".
15. The principle is based on an equitable doctrine that a person who promised to perform more than he can perform must make good his contract when he acquires the power of performance. The difference between the ambit of Sections 41 and 43 of the Act is apparent. Whereas Section 41 provides that a transfer by an ostensible owner cannot be avoided on the ground that the transferor was not authorised therefor, subject to the condition that the transferee should take reasonable care to ascertain that the transferor had power to make the transfer and to act in good faith before a benefit thereof is claimed by him. Section 43, on the other hand, enables the transferee to whom a transferor has made a fraudulent or erroneous representation to lay hold, at his option, of any interest which the transferor may subsequently acquire in the property, unless the right of any subsequent purchaser for value without notice is in effect."
26. Learned Counsel for the petitioners has placed further reliance, in support of his submission, upon a decision of the Orissa High Court in Biswanath Sahu and others vs. Mrs. Tribeni Mohan (dead) by L.R.s and others, AIR 2003 Ori 189. It has been held in paragraph 10 of the report in Biswanath Sahu and others (supra) thus:
"10. If the case is looked from another angle, it will be evident that execution of the sale deed has to be upheld as valid. Reference may be made to S. 43 of the Transfer of Property Act. Said Section provides as follows:
"Transfer by unauthorised person who subsequently acquires interest in property transferred -- Where a person (fraudulently or erroneously) represents that he is authorised to transfer certain immovable property and professes to transfer such property for consideration, such transfer shall, at the option of the transferee, operated on any Interest which the transferor may acquire in such property at any time during which the contract of transfer subsists."
There is no dispute that after death of Amulyanath Mitra, defendant No. 3 has succeeded to the property. Even if contention of the learned counsel for the appellant is accepted that the deed (Ext. 2) had been executed during lifetime of Amulyanath Mitra by Sailendranath Mitra as Power-of-attorney holder, the sale was not valid because of the reasons stated earlier, the property having devolved on defendant No. 3 after death of Amulyanath Mitra, the provision contained in S. 43 of the Transfer of Property Act comes Into operation and, therefore, such sale is not only valid but also binding on defendant No. 3..............."
27. Sri Bhola Nath Yadav, learned Counsel for respondents nos.3/1 to 3/3 has refuted the contention of the learned Counsel for the petitioners on this score. He submits that fair and square the principle embodied in Section 43 of the Transfer of Property Act or the principle of feeding the estoppel, is not at all attracted to the facts of this case. In the submission of Sri Bhola Nath Yadav, a right based on the principle of feeding the estoppel is available, so long as the transferee does not know for a fact that the transferor who represents title in himself, does not hold it. He submits that in a case where the transferee knows for a fact that the transferor does not hold title that he transfers by his deed, a subsequent acquisition of that title by the transferor, would not serve to feed the estoppel. In short, in the submission of the learned Counsel for the respondents, this principle is available only in cases where the transferee does not know that the transferor, in fact, holds no interest in the immovable property that he represents to possess, when he executes the conveyance; not if the transferee is also aware about the absence of title in the transferor at the time of conveyance. He submits that the petitioner, Ram Dei was aware about the fact that Phula Kunwar's interest was inherited by Smt. Sona Kunwar, being her heir entitled and Phula Kunwar having died intestate. He points out that the petitioner is a relative of Smt. Sona Kunwar, Smt. Phula Kunwar, her mother and also of Ramji, Sona Kunwar's son, her vendor. In these circumstances, he urges that the petitioner was well aware that half share in the land in dispute devolved upon Smt. Sona Kunwar, and not upon Ramji, who held as a co-tenant to the extent of a half share along with Smt. Phula Kunwar, since deceased. Learned Counsel for the respondents, therefore, submits that the provisions of Section 43 of the Transfer of Property Act would not apply and the transfer would fail under Section 6(a) of the Act, last mentioned.
28. In support of his contention, learned Counsel for the respondents has placed reliance on a decision of the Supreme Court in Jumma Masjid, Mercara vs. Kodimaniandra Deviah and others, AIR 1962 SC 847. He has drawn the Court's attention to paragraph 15 of the report in Jumma Masjid, Mercara (supra), where it is held:
"15. This reasoning is open to the criticism that it ignores the principle underlying Section 43. That section embodies, as already stated, a rule of estoppel and enacts that a person who makes a representation shall not be heard to allege the contrary as against a person who acts on that representation. It is immaterial whether the transferor acts bona fide or fraudulently in making the representation. It is only material to find out whether in fact the transferee has been misled. It is to be noted that when the decision under consideration was given, the relevant words of Section 43 were, "where a person erroneously represents", and now, as amended by Act 20 of 1929, they are "where a person fraudulently or erroneously represents", and that emphasises that for the purpose of the section it matters not whether the transferor acted fraudulently or innocently in making the representation, and that what is material is that he did make a representation and the transferee has acted on it. Where the transferee knew as a fact that the transferor did not possess the title which he represents he has, then be cannot be said to have acted on it when taking a transfer. Section 43 would then have no application, and the transfer will fail under Section 6(a). But where the transferee does act on the representation, there is no reason why he should not have the benefit of the equitable doctrine embodied in Section 43, however fraudulent the act of the transferor might have been.
(Emphasis by Court)
29. The learned Counsel for the respondents has further placed reliance to the same end on the decision of the Supreme Court in Jharu Ram Roy vs. Kamjit Roy and others, (2009) 4 SCC 60, where on the point in hand, it has been held thus:
"11. Fraud vitiates all solemn acts. As the appellant was aware of the fact that Nakho Ram had not expired in 1992, in our opinion, the provisions of Section 43 of the Transfer of Property Act cannot be said to have any application in the instant case."
30. Learned Counsel for the respondents has also urged that Smt. Sona Kunwar died on 05.07.1979 pending revision before the Deputy Director of Consolidation, but the plea based on Section 43 of the Transfer of Property Act was never taken before the Revisional Authority. The contention is that the failure of the transferee to urge a plea based on rights under Section 43 before the Revisional Authority, clearly shows that the transferee never exercised her option to operate on the interest that Ramji inherited, pending revision. It is also pointed out that in the writ petition, there is not as much as a whisper regarding a right based on Section 43 of the Transfer of Property Act; there is utter absence of a plea in that regard. It is urged by the learned Counsel for the respondents that in the absence of a plea based on Section 43 being taken before the Revisional Authority or in the writ petition, the petitioner cannot be permitted to urge that plea at the stage of hearing, bereft of pleadings, either before the Revisional Court or before this Court. In this connection, learned Counsel for the respondents has relied upon a decision of a Division Bench of the Patna High Court in Mahipat Missir and others vs. Ganpat Sah and others, AIR 1963 Pat 277, where it is held:
"15. It is, therefore, to be seen what would be the consequence of taking notice of the death of Rajmato at the appellate stage. If the sale deed of the appellants were for legal necessity, the title of Rajmato in the suit land would pass absolutely to the appellants, otherwise her life interest only would pass. Hence, after the death of Rajmato, the appellants are entitled to plead and prove that the sale deed was for legal necessity. But, while Rajmato was alive, they had only to show that her interest did not pass to the plaintiff-respondents. It would, therefore, be unjust to the appellants to hold that, after the death of Rajmato during the pendency of the second appeal, they acquired only her life interest on the ground that they had not pleaded or proved in her life time legal necessity for their sale deed. On the other hand, the plaintiff-respondents cannot get any advantage of the death of Rajmato, unless they prove the ingredients required for the application of Section 43 of the Transfer of Property Act, and the only person who can take advantage of her death is defendant No. 6, who was a co-executanti of the plaintiffs' sale deed as well as the defendants' sale deed and duped both these parties. It is, therefore, fair and just to leave the question of the consequences of the death of Rajmato to be tried in another suit and the death of Rajmato should not be taken into account in the present litigation."
31. The absence of a plea regarding the right, flowing from Section 43 of the Transfer of Property Act, being a bar to its consideration at the hearing has been buttressed by the learned Counsel for the respondents on the strength of a decision of their Lordships of the Supreme Court in Ram Sarup Gupta vs. Bishun Narain Inter College, (1987) 2 SCC 555, where it is held:
"6. The question which falls for consideration is whether the respondents in their written statement have raised the necessary pleading that the licence was irrevocable as contemplated by Section 60(b) of the Act and, if so, is there any evidence on record to support that plea. It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. The object and purpose of pleading is to enable the adversary party to know the case it has to meet. In order to have a fair trial it is imperative that the party should settle the essential material facts so that other party may not be taken by surprise. The pleadings however should receive a liberal construction; no pedantic approach should be adopted to defeat justice on hair-splitting technicalities. Some times, pleadings are expressed in words which may not expressly make out a case in accordance with strict interpretation of law. In such a case it is the duty of the court to ascertain the substance of the pleadings to determine the question. It is not desirable to place undue emphasis on form, instead the substance of the pleadings should be considered. Whenever the question about lack of pleading is raised the enquiry should not be so much about the form of the pleadings; instead the court must find out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is found that in spite of deficiency in the pleadings parties knew the case and they proceeded to trial on those issues by producing evidence in that event it would not be open to a party to raise the question of absence of pleadings in appeal. In Bhagwati Prasad v. Chandramaul [AIR 1966 SC 735: (1966) 2 SCR 286, 291] a Constitution Bench of this Court considering this question observed:
"If a plea is not specifically made and yet it is covered by an issue by implication, and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence. The general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely in the issues, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the court has to consider in dealing with such an objection is: did the parties know that the matter in question was involved in the trial, and did they lead evidence about it? If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter. To allow one party to rely upon a matter in respect of which the other party did not lead evidence and has had no opportunity to lead evidence, would introduce considerations of prejudice, and in doing justice to one party, the court cannot do injustice to another."
32. It is on this point further strenuously urged by the learned Counsel for the respondents that a right based on Section 43 of the Transfer of Property Act is available exclusively where the transferor, fraudulently or erroneously, represents that he is authorized to transfer certain immovable property, but in fact does not hold any such right on the date that he executes the sale deed. It is submitted that in order to succeed on a plea under Section 43 of the Transfer of Property Act, it must be shown by the party who urges that plea that the transfer in his/ her favour was based on either a fraudulent or an erroneous representation. In the submission of the learned Counsel for the respondents unless that plea is specifically taken, based on either a case of a fraudulent or erroneous representation, upon which the transferee had acted, no rights can be claimed on the foundation of Section 43 of the Transfer of Property Act. Dilating on this part of his submission, learned Counsel for the respondents emphasizes that it is necessary to support a plea based on the principle of feeding the estoppel that there must be a fraudulent or erroneous representation by the transferor in relation to his title, on which the transferee has acted. It is submitted by him that in the present case not only is there an utter want of a plea of this kind, but there is also no evidence or material on record to indicate that there was a fraudulent or mistaken representation by Ramji vis-a-vis his title to the land in dispute, acting on which the petitioner accepted the conveyance.
33. It is true, without doubt, that the stage where a plea founded on Section 43 of the Transfer of Property Act ought to have been taken had arrived before the Revisional Authority, when Smt. Sona Kunwar, the one who was contesting, passed away. A reading of the Revisional Authority's judgment shows at the outset that the fact that Sona Kunwar died pending revision, was well within the cognizance of the Deputy Director of Consolidation, as well as the parties. This is so because Smt. Sona Kunwar died on 05.07.1979, after the revisions were instituted and these revisions were decided by the impugned judgment on 26.02.1985. Evidently, during proceedings before the Deputy Director of Consolidation, the petitioner had ample opportunity to take a plea based on Section 43 of the Transfer of Property Act, which she never did. The Revisional Authority's judgment is testimony to the fact that no such plea was taken before the said Authority by the petitioner. The Revisional Authority's judgment also shows that the original respondent no.3 here, Ramji described in the Deputy Director of Consolidation's order as Ramji Tiwari son of Sarju Tiwari was substituted in place of Sona Kunwar. Therefore, there is not the slightest doubt that if anything else, Ramji seeking substitution in place of Sona Kunwar, the one who was contesting, offered an unignoreable opportunity to the petitioner to take a plea founded on Section 43 of the Transfer of Property Act.
34. This Court is mindful of the fact that legal assistance available to a litigant before the Consolidation Authorities do not offer sterling legal acumen. There could be many a decisive slip or a lost opportunity for the litigant because he was not appropriately advised in a cause before a Lay Tribunal, like a Consolidation Authority. This Court would not hesitate to accept, if there were a faint case, much less a plea in furtherance of the petitioner's right that did not find eloquent and precise mention in her pleadings. Sadly, that is not the case here. There is not the slightest hint of a case founded on the right that Section 43 of the Transfer of Property Act envisages. Sparing all follies for the absence of good legal assistance that a litigant often faces before Authorities like those in the consolidation jurisdiction, a reading of the writ petition does not bail out the petitioner, either. Across the length and breadth of the writ petition, this Court does not find any trace of a plea that may have urged for the petitioner a case founded on Section 43, last mentioned. This Court may dare say that if that plea was ever in the petitioner's contemplation, it would have certainly found specific mention in the writ petition. This plea has come up before the Court at the hearing, to which there is no factual basis. A plea based on Section 43 of the Transfer of Property Act would always give rise to a mixed question of fact and law. It is not a plea giving rise to one of those pure questions of law that may be determined, abstracted from facts by this Court, at a stage as late as address of arguments with no foundation laid for it. A plea of that kind that may be urged, bereft of any foundation is classically associated with a case about total lack of jurisdiction in the Court, relating to the subject matter. A plea and a question of that kind is invariably based on facts, of which the Court must take judicial notice. The present plea based on Section 43 of the Transfer of Property Act is far from it. In the considered opinion of the Court, it cannot be examined on the existing state of the parties' pleadings here, and before the Revisional Authority. In taking this view, this Court is fortified by the law laid down in Ram Swarup Gupta (supra) and Mahipati Missir (supra).
35. Learned Counsel for the respondents has laid much emphasis on the fact that going by the close relationship of parties, it was known for a fact to the petitioner that a half share in the property in dispute that Smt. Phula Kunwar held, would devolve upon Smt. Sona Kunwar, on the former's decease. He has impressed upon the Court that for a proposition of law, where the transferee knows for a fact that the transferor has no title in presenti to convey what he purports to do by his deed, the principle of feeding the estoppel would not be attracted. It would be attracted only when the transferee is in ignorance about the vendor's title and acts on the vendor's representations, whether mistaken or fraudulent, alone. The argument is tempting to deal with in the facts of the present case. But, this Court would refrain from doing so as there is no pleading anywhere on which the edifice of this case may be built by parties and considered by this Court. Accordingly, this Court is not inclined to accept the petitioner's submission that the sale deed of 1959 after Smt. Sona Kunwar's death in 1979 is enforceable against Ramji, vis-a-vis the entire land in dispute, by invocation of the principle of feeding the estoppel.
36. The next ground on which the impugned orders have been assailed by Sri Vishnu Singh, learned Counsel for the petitioner is that notwithstanding the failure of the sale deed of 1959 to convey the whole of the land in dispute, the subsequent sale deed dated 15.02.1960 executed by Smt. Sona Kunwar-I, removes that deficiency. The said sale deed conveys the remaining half share, inherited by Smt. Sona Kunwar-I, in favour of Smt. Ram Dei. It is this case of the petitioners that gives rise to the question about the identity of the woman, who executed the sale deed dated 15.02.1960. Whereas the learned Counsel for the petitioner says that the sale deed of 15.02.1960 was executed by Smt. Sona Kunwar-I, who is the mother of Ramji and wife of Sarju Tiwari, learned counsel for respondent nos.3/1 to 3/3 urged that it was executed by an impostor.
37. Sri Vishnu Singh, learned Counsel for the petitioner submits that the Consolidation Officer had before him Sona Kunwar-I, who is the real Sona Kunwar. She entered the witness-box and testified in support of her identity. She also supported the execution of the sale deed dated 15.02.1960 in favour of the petitioner. He urges that Sona Kunar-II, who has contested the petitioner's claim and disowned the sale deed dated 15.02.1960, is an impostor. It is asserted by him that the Consolidation Officer, after a careful evaluation of the oral testimony of Sona Kunwar-I, Sona Kunwar-II and Sarju Tiwari, who is admitted to be the husband of Sona Kunwar, whichever of the two women is in reality Sona Kunwar, has held that Sona Kunwar-I is the genuine person. It is further submitted by Sri Vishnu Singh that the Settlement Officer of Consolidation and the Deputy Director of Consolidation have reversed the Consolidation Officer's findings regarding determination of the identity of Sona Kunwar to hold that Sona Kunwar-II is the genuine person. Learned Counsel urges that the reasoning of the Appellate Authority and the Revisional Authority is flawed because the Authority of first instance held trial and had the advantage of watching the demeanour of witnesses. Furthering that submission, it is said by the learned Counsel for the petitioner that much turns in this case about the identity of the two women claiming to be Sona Kunwar, on the testimony of witnesses. Therefore, according to the learned Counsel for the petitioner, the opinion of the Authority of first instance, on an issue that primarily rests on evaluation of oral evidence, ought not to have been disturbed by the Appellate and the Revisional Authorities, who did not see the witnesses. It is the learned Counsel's contention that wherever an issue arises that is primarily to be decided on the basis of oral evidence, the Appellate Court should invariably accept the Trial Court's evaluation, unless the conclusions drawn or the reasoning adopted is patently flawed.
38. Learned Counsel for the petitioner draws support for the aforesaid proposition from a decision of their Lordships of the Supreme Court in Madhusudan Das vs. Narayanibai (Deceased) by LRs and others, (1983) 1 SCC 35. He has invited this Court's attention to paragraph 8 of the report, where it is held:
"8. The question whether the appellant was in fact adopted by Jagannathdas and Premwati has been determined essentially on the basis of oral testimony, and reference has been made to a few documents only in supplementation of the oral evidence. At this stage, it would be right to refer to the general principle that, in an appeal against a trial court decree, when the appellate court considers an issue turning on oral evidence it must bear in mind that it does not enjoy the advantage which the trial court had in having the witnesses before it and of observing the manner in which they gave their testimony. When there is a conflict of oral evidence on any matter in issue and its resolution turns upon the credibility of the witnesses, the general rule is that the appellate court should permit the findings of fact rendered by the trial court to prevail unless it clearly appears that some special feature about the evidence of a particular witness has escaped the notice of the trial court or there is a sufficient balance of improbability to displace its opinion as to where the credibility lies. In this connection, reference may usefully be made to W.C. Macdonald v. Fred Latimer [AIR 1929 PC 15, 18: 29 Mad LW 155: 112 IC 375] where the Privy Council laid down that when there is a direct conflict between the oral evidence of the parties, and there is no documentary evidence that clearly affirms one view or contradicts the other, and there is no sufficient balance of improbability to displace the trial court's findings as to the truth of the oral evidence, the appellate court can interfere only on very clear proof of mistake by the trial court. In Watt v. Thomas [LR 1947 AC 484, 486: (1947) 1 All ER 582: 176 LT 498] it was observed: "...it is a cogent circumstance that a judge of first instance, when estimating the value of verbal testimony, has the advantage (which is denied to courts of appeal) of having the witnesses before him and observing the manner in which their evidence is given." This was adverted to with approval by the Privy Council in Sara Veeraswami alias Sara Veerraju v. Talluri Narayya [AIR 1949 PC 32: 75 IA 252: 1948 All LJ 479] and found favour with this Court in Sarju Pershad v. Raja Jwaleshwari Pratap Narain Singh [1950 SCR 781, 783: AIR 1951 SC 120: 1950 SCJ 583] . It seems to us that this approach should be placed in the forefront in considering whether the High Court proceeded correctly in the evaluation of the evidence before it when deciding to reverse the findings of the trial court. The principle is one of practice and governs the weight to be given to a finding of fact by the trial court. There is, of course, no doubt that as a matter of law if the appraisal of the evidence by the trial court suffers from a material irregularity or is based on inadmissible evidence or on a misreading of the evidence or on conjectures and surmises the appellate court is entitled to interfere with the finding of fact. Our attention has been drawn by the respondents to the Asiatic Steam Navigation Co. Ltd. v. Sub-Lt. Arabinda Chakravarti [AIR 1959 SC 597: 1959 Supp 1 SCR 979: 1959 SCJ 815] but nothing said therein detracts, in our opinion, from the validity of the proposition enunciated here."
39. Sri Bhola Nath Yadav, learned Counsel for the respondents on the other hand has refuted the aforesaid contention and submitted that it is not that the Appellate Authority and the Revisional Authority had only oral evidence in hand to decide upon the identity of the two women, claiming themselves to be Smt. Sona Kunwar. According to him, there were other relevant materials, evidence and circumstances that were taken into consideration by the Appellate and the Revisional Authorities to opine the way they did. He submits that oral evidence is not the only evidence bearing on the identity of Sona Kunwar, and, therefore, the approach of the Appellate and the Revisional Authorities cannot be faulted.
40. It is true for a principle that wherever the decision of a question or an issue turns entirely on oral evidence, the opinion of the Trial Court carries great weight and ought not to be disturbed by a Court of Appeal, except for very compelling reasons. These reasons could be a palpabably wrong conclusion drawn by the Trial Court, which no reasonable person could reach, given the evidence of witnesses. This principle about pre-eminence accorded to the Trial Court, in the matter of appreciation of oral evidence, is based on the reasoning that the Trial Court had advantage of watching the witnesses' demeanour, which the Appellate Court or still higher fora did not. In judging the truth of a statement in the testimony, it is of prime importance that not only what the witness says be considered, but also how he says it. The demeanour reveals the unspoken truth, or the truth or falsehood of spoken words. Demeanour is a good word of formal English usage. Nowadays, it is better understood by men of contemporary education as ''body language'. It cannot be gainsaid that what the Trial Court watches or is supposed to watch, peeping behind the words of a witness, is a unique opportunity of which the Appellate Court is deprived. It must be borne in mind that for a principle whatever is said in favour of the unique advantage that the Trial Judge has, in evaluating oral evidence, is sound law. In the present day, the application of the principle by Courts is witnessing dwindling adherence. The reasons why that is so are more than one. Generally, Superior Courts are mindful of the fact that trials over time have become less formal in many jurisdictions, particularly in the Moffusil Courts, and the Trial Judge seldom keeps or is unable to keep that eagle's eye on the demeanour of witnesses, otherwise characteristic of his/her duties. The recorded testimony of witnesses in Law Courts, let alone Lay Courts, nowadays would rarely carry remarks by the Judge on the margins of recorded evidence about the witnesses' demeanour. It is also true that overcrowded dockets of Trial Courts deprive the Trial Judge of all that opportunity, where he may bestow searching attention to the demeanour of witnesses. Despite these changed and changing conditions in the Trial Courts, the sound principle of law, under reference, cannot be discarded as rudimentary. At the same time, under the changed conditions of the day obtaining in the Trial Courts, this principle would certainly have a modified application, in this Court's opinion. This is so because the raison d'etre of the principle under reference is the fact that the Trial Judge, who renders judgment is the same Judge, who heard the witnesses. In present times, it is again a matter to be taken judicial notice of that the swelling dockets in Trial Courts, invariably lead to a situation where the Judge who hears, watches and records the witnesses, does not deliver judgment in the cause; some successor of his does. In a situation where another Judge records evidence and a different one decides, the pre-eminence of the Trial Judge's opinion regarding oral testimony looses its very foundation. Thus, in contemporary time, and times not so contemporary also, a party who wishes to rely on the principle that primacy be accorded to the evaluation of purely oral evidence by the Trial Judge/ Court/ Authority of first instance, must show for a fact that the incumbent Judge or Presiding Officer, who wrote judgment for the Trial Court/ Authority of first instance, was the same Presiding Officer who had heard and recorded evidence in the matter. This would then be the modification which the long standing principle must suffer in the changed times.
41. In the present case, proceedings before the Consolidation Officer, the Authority of first instance, were instituted in the year 1970 and decided half way down the year 1972. During the period of time to which these proceedings relate, these winds of change had come where it cannot be presumed that the Presiding Officer, who decided in the Court of first instance was necessarily the incumbent, who heard evidence. There is nothing on record to suggest that the Presiding Officer in this case, Sri C.P.N. Singh, the then Consolidation Officer-II, Jamania, District Ghazipur, was the incumbent Presiding Officer, before whom the witnesses testified. This is not asserted for a fact in the writ petition, though a ground based on the principle has been taken. This Court, therefore, is not minded to accept the contention of the learned Counsel for the petitioner that urges a blanket application of the classical principle. This Court, may, however, hasten to add that the principle would still apply in all cases where a party urges a case on its basis and shows that the Judge who heard evidence was the same Judge/Presiding Officer, who delivered judgment.
42. It is submitted by Sri Vishnu Singh that the findings of the Appellate Authority and the Revisional Authority, about determination of the identity of Smt. Sona Kunwar, is vitiated on account of non-consideration of material evidence. He points out that the Consolidation Officer has considered the oral evidence of Sarju Tiwari, Smt. Sona Kunwar (both I and II) and Ramji, son of Sarju Tiwari to record his finding about the identity of Sona Kunwar. He further says that the Appellate Authority and the Revisional Authority have not at all mentioned material and relevant oral evidence of these witnesses on this issue. Sri Bhola Nath Yadav, learned Counsel for the respondents does not dispute the fact that the oral evidence, about identity of Smt. Sona Kunwar, has not been considered by the Appellate and the Revisional Authorities. He submits that not much would turn on that evidence, as it does not shed light on this rather perplexing issue, about the identity of Smt. Sona Kunwar. He submits that there are other material circumstances and documentary evidence considered by the Appellate and the Revisional Authorities, that are relevant and germane to the issue. The evidence considered by the Appellate and the Revisional Authorities, in the submission of the learned Counsel for the contesting respondents, is complete in itself to determine the identity of Smt. Sona Kunwar. According to him, the oral evidence is not at all relevant and the fact that the Appellate and the Revisional Authorities have not taken it into consideration, would in no way materially affect the conclusion.
43. The submission and its worth is to be tested on the basis whether the identity of Sona Kunwar, materially or decisively, turns upon oral evidence; or there is other evidence in the form of documents and circumstances forthcoming, in the face of which oral evidence may have little bearing on the relevant fact, if not discounted altogether. The Court of first instance has indeed looked into the oral testimony of Sarju Tiwari, the one that is part of his cross-examination, recorded on 22.07.1971. He has also referred to some stray lines appearing in the testimony of Smt. Sona Kunwar, without indicating whether this testimony comes from Sona Kunwar-I or Sona Kunwar-II. It would be profitable to extract from his judgment, what the Consolidation Officer has relied upon in the oral evidence of Sarju Tiwari and Smt. Sona Kunwar (whichever of the two it is):
"Phool Kunwar ke bad jomukadame lare usme asali sona Kunwar thiya nakall Sona Kunwar thimai nahi Janta Apame vo Ramji se alag se mukadama baji kiye vah farzi Sona Kunwar This. Pula Kunwar ke marne ke bad jo Sona Kunwar narin Va Bishwanath se mukdama baje kiya use main nahi janta. Main nahi Janta ki phool Kunwar ke marne ke bad Jis Sona Kunwar neer verasat ke karvah nahi kiya vah asali Sona Kunwar Thi ya nakali."
Sarjoo Tewari has started at other place in cross examination.
"Meri patni ne Ramji ke kabhi bhi alag nahi kiya jis Sona Kumwar ne yah bayan diya ho ki Ramji ko mai 25 sal se Alag kar diya hai vah stri meri patni nahi hai-------- agarki yah kahe ki Ramji va Sona kilheti alag alag his vah meri stri Sona nahi hai. Ramjee koi mukadama apne asali ma se nahi lara. In contradiction to the statement of Sarjoo Teweri Sona Kunwar has state:
"Phoola Kunwar marne ke bad Basdeo Va Ram Naresh se Mukadama Baji huyi huyi main hi asali sona kunvar."
44. From the aforesaid evidence, the Consolidation Officer has concluded that Sona Kunwar-II, described in the judgment as Sona Kunwar, represented by Sri Mohd. Taufiq Khan, Advocate is not the real Sona Kunwar. This Conclusion is based on contradiction deciphered by the Consolidation Officer in the evidence of Sarju Tiwari, admittedly the husband of Sona Kunar, whoever the real one be, Smt. Sona Kunwar-II and Ramji, the son of Sarju Tiwari. This contradiction, to support the conclusion that Sona Kunwar-II is not the real Sona Kunwar, is recorded in the Consolidation Officer's judgment in the following words:
"This statement proves that Sona Kunvar represented by Taufiq Khan is not real Sona Kunwar Sarjoo Tewari Says that the lady who filed objection with Bansdeo is not his wife while Sona Kunwar says that she has filed objection against Bansdeo. Further Sona Kunwar has stated in the court B.K. Chaturvedi that she is separate for 25 years with Ramjee. This contradicts the statement of Sarjoo Tewari who says that the lady who has given such statement is not his wife. Sona further stated in the court of B.K. Chaturvedi that his son lives separately which Sarjoo Tewari says that the lady who has give such statement is not his wife Sarjoo Tewari has stated that Ramjee has never contested any case against his mother while Ramjee as stated that he has contested with Sona Kunwar in the court of A.D.M. (J) in the court of Laljee Rai. Smt. Ramdei has taken the plea from the very begining that Sona Kunwar who is represented by Taufiq Khan is a fictitious lady. She was not able to prove it in earlier proceedings suits, But now the admission of Sarjoo Tewari referred above clearly shows that the lady who has contested earlier suits was the real Sons Kunwar is valid that the name of Sona Kunwar after the sale is fictitiously recorded in the village records that suit is not barred by resjudicata that Ramjee and Sona Kunwar had right to execute sale deed that Smt. Sona Kunwar Kunwar represented by Shri Mohamnad Taufiq Knan Advocate is fictitious lady the share of Sona Kunwar shall pass to Smt. Ramdei."
45. It is true that the Settlement Officer of Consolidation or for that matter the Deputy Director of Consolidation, have not gone about the task of analyzing the oral testimony of parties in recording conclusions contrary to the Consolidation Officer, about the identity of Sona Kunwar. They have looked into documentary evidence and circumstances that support the validity of their reasoning. On the other hand, the Consolidation Officer has referred to oral evidence of the three witnesses, above mentioned, not in wholesome detail, but somewhat torn out of context. This Court is aware of the fact that it is not its province to appreciate any kind of evidence and this Court does not propose to do that. However, it is certainly the duty of this Court to see whether the Authorities below, whose orders are brought up for judicial review, have proceeded to decision without ignoring from consideration material evidence, without taking into consideration irrelevant evidence and drawn conclusions that may not be termed perverse. These are byfar principles that have withstood the test of time. This Court has looked into the evidence of Sarju Tiwari, admittedly the husband of the woman, called Sona Kunwar. He has testified in great detail, shedding light on the identity of the two women claiming themselves to be Sona Kunwar, rivaling each other. This witness has been extensively cross-examined and much relevant material has been elucidated in that exercise. Likewise, there is a wealth of evidence coming from the two women claiming themselves to the genuine Sona Kunwar, that is to say, Sona Kunwar-I and Sona Kunwar-II. Both these women have been subjected to searching cross-examination, that sheds light on relevant facts. Again, Ramji who is the vendor of the sale deed of 1959, a central figure in this litigation and a son of Sarju Tiwari and Sona Kunwar, has testified to relevant and material facts. This witness too, has been extensively cross-examined.
46. This Court is of considered opinion that with so much evidence forthcoming in the shape of dock evidence of parties, who are involved in the entire transactions giving rise to this cause, the Appellate and the Revisional Authorities ought not to have passed over their testimony. Their evidence assumes importance, all the more, as the issue is about the identity of Sona Kunwar - the real Sona Kunwar wife of Sarju Tiwari and mother of Ramji - to be determined between two women, Sona Kunwar-I and Sona Kunwar-II. What makes it imperative for the said evidence to be considered all the more is the fact that this evidence, howsoever cursorily or in truncated form, was gone into by the Consolidation Officer, while writing his finding about the identity of Sona Kunwar. No doubt, the Appellate and the Revisional Authorities have considered very relevant circumstances and evidence to return concurrent findings about the identity of Sona Kunwar, in reversal of the Consolidation Officer, but bereft of consideration of the oral evidence referred to above, their findings cannot be sustained.
47. It is next submitted by Sri Vishnu Singh, learned Counsel for the petitioner that the Appellate and the Revisional Authorities have acted upon irrelevant material, while returning their findings in favour of the third respondent. That irrelevant material, according to Sri Vishnu Singh, are judgments of the Mutation Authorities and the Court in the declaratory suit brought by the petitioner, where the same issues were involved inter partes. According to Sri Vishnu Singh, findings in mutation proceedings are absolutely irrelevant in determining a title dispute. He submits that so far as the findings in the declaratory suit are concerned, no doubt these went against the petitioner, but proceedings of that suit never attained finality. The petitioner lost the suit upto the Appellate Court, but carried the matter further in Second Appeal. Proceedings in the Second Appeal could not reach conclusion as these abated with the initiation of Consolidation Proceedings. Learned Counsel for the petitioner submits that the Appellate and the Revisional Authorities should not have taken the findings as aforesaid into consideration, while writing the judgments impugned. Sri Bhola Nath Yadav on the other hand has urged that the Appellate and the Revisional Court have referred to the judgments in mutation proceedings and the declaratory suit in order to judge the conduct of parties, but have not acted on those findings while recording their own. He submits that findings of the two Authorities below are based on their independent appraisal of evidence, unaffected by findings of the mutation Authorities or the Courts that heard the declaratory suit.
48. A perusal of the judgment passed by the Settlement Officer of Consolidation shows that after a meticulous reference to proceedings and the outcome before the Mutation Authorities, as well as the decisions in the declaratory suit that abated at the stage of Second Appeal, the Settlement Officer of Consolidation has recorded the following findings:
"अस्तु उपर्युक्त परिस्थितियों में यह निष्कर्ष निकलता है कि बैनामा दिनांक 15-2-60 नितान्त संदेहास्पद और अवैध है। चकबन्दी आने के पूर्व जितने भी निर्णय हुए है उनके बारे में ऊपर विचार किया गया है। वे सभी निर्णय श्रीमती रामदेई के विपक्ष और श्रीमती सोना कुवर अपीलकर्ता के पक्ष में हुआ है। यद्यपि वे प्राड़न्याय का प्रभाव नहीं रखते फिर भी अपने आप में महत्वपूर्ण साक्ष्य हैं जो अपीलकर्ता श्रीमती सोना कुवर के पक्ष का समर्थन करते हैं।"
49. Likewise, the Revisional Authority has construed the effect of findings of the Mutation Authorities and those in the declaratory suit, in terms of the following findings:
"उपर्युक्त तथ्यों से स्पष्ट है कि रामदेई दो बार दाखिल खारिज के मुकदमें में हार गई और एक बार डिक्लेयरिटी सूट अन्तर्गत धारा 229 बी अपर आयुक्त, वाराणसी मण्डल, वाराणसी तक आ चुकी है। यद्यपि यह आदेश अन्तिम नही है, क्योंकि उसकी अपील चकबन्दी आ जाने के कारण राजस्व परिषद में अवेट हो गयी फिर भी यह आदेश साक्ष्य के रूप में माना जा सकता है।"
50. A perusal of these findings by the Appellate and the Revisional Authorities show that these Authorities have considered for relevant evidence, the decision of the Mutation Authorities inter partes as also the judgments in the declaratory suit. The proceedings of the suit never reached terminus ad quem. So far as the decisions of the Mutation Authorities are concerned, it is settled beyond cavil that those findings are in no way relevant in title proceedings. Mutation proceedings are summary proceedings to identify the person to be recorded, primarily for fiscal purposes. The proceedings in hand arise out of objections under Section 9-A(2) of the Act, which to all intents and purposes, are title proceedings. Thus, there is absolutely no justification for the Authorities below to have considered the findings of the Mutation Authorities as relevant evidence in title proceedings.
51. Likewise, proceedings of the declaratory suit instituted by the petitioner admittedly remained inchoate, as these terminated without final judgment in the Second Appeal on account of abatement, as a result of notification of Consolidation Operations. The findings recorded in the suit at lower rungs in the hierarchy of those Courts never attained finality and with abatement, whatever those findings were, stood effaced. The Authorities below were, therefore, in manifest error in relying upon findings recorded in the declaratory suit, that were snuffed out of existence with abatement of the suit in Second Appeal. In the opinion of this Court, therefore, the Authorities below acted on irrelevant evidence.
52. This Court may now venture to consider the last submission of Sri Vishnu Singh. He submits that the Appellate Authority, while writing the order impugned, has determined the identity of Smt. Sona Kunwar by doing a comparison of her thumb impression on the Vakalatnama before him with that on the sale deed of 1960. He has done so with the aid of a magnifying glass, without the assistance of an expert. Sri Vishnu Singh submits that while theoretically open to a Court or an Authority invested with judicial functions to do a comparison of two finger print specimen - one admitted and the other disputed - it is a course of action fraught with great peril. He submits that judicial authority frowns upon this mode of comparison, so far as finger print specimen go. Sri Bhola Nath Yadav, learned Counsel for respondents nos.3/1 to 3/3 submits that it is open to a Court to compare any kind of mark, signature or handwriting and the assistance of an expert is not an indispensable requirement.
53. This Court has looked into the relevant finding of the Appellate Authority which reads thus:
"चकबन्दी अधिकारी के समक्ष दिनांक 17-10-70 को जो स्त्री श्री बेचू सिंह वकील के माध्यम से अपने को असली सोना कुवर कहते हुए मुकदमा में सम्मिलित हुई है उसके अंगूठे के निशान भी बेचू सिंह द्वारा प्रस्तुत किए गए वकालतनामा पर हैं और अपील न्यायालय में श्री मदन मोहन चौबे द्वारा जो वकालतनामा प्रस्तुत किया गया उस पर भी उसके निशान अंगूठा है। श्री बेचू सिंह द्वारा प्रस्तुत वकालतनामा पर श्रीमती सोना कुवर का जो अंगूठा है, वह बहुत स्पष्ट नही है, किन्तु श्री मदनमोहन चौबे वाले वकालतनामा पर श्रीमती सोना कुँवर का निशान अंगूठा बहुत स्पष्ट है, वकालतनामा पर अंकित अंगूठों का मिलान मैने बैनामा दिनांक 15-2-60 पर अंकित श्रीमती सोना कुँवर के निशान से सूक्ष्म दर्शी शीशा के माध्यम से किया है। मोटे तौर पर बैनामा और वकालतनामा के निशान अंगूठा एक दूसरे से बहुत भिन्न हैं। एक में रेखाओं की दिशाएं बायी ओर हैं तो दूसरे में उसके विपरीत ठीक दाहिने। इससे भी स्पष्ट हो जाता है कि उत्तरवादिनी सोना कँवर ने जो बैनामा के ठीक 10 वर्ष बाद किसी न्यायालय में अपने को असली सोना कुँवर कहती हुई उपस्थित हुई है, बैनामा दिनांक 15-2-60 नहीं लिखा है।"
54. The Revisional Authority has recorded a similar finding, in approval of the Settlement Officer of Consolidation, which reads as follows:
"श्री बेचू सिंह द्वारा प्रस्तुत वकालतनामे पर जो सोनाकुँवर का कथित निशानी अंगूठा है, वह स्पष्ट नहीं है, परन्तु मदन मोहन चौबे वाले वकालतनामे पर अंकित अंगूठे के निशान का मिलान उन्होने 15-2-60 पर अंकित सोनाकुँवर के अँगूठा निशान से सूक्ष्मदर्शी शीशे के माध्यम से किया जो मोटे तौर पर दोनो निशानी अँगूठे एक दूसरे से बिलकुल भिन्न हैं। इससे स्पष्ट है कि जिस स्त्री का निशान अँगूठा बैनामा पर है, वह स्त्री नहीं है जो जब सोना कँवर बनकर बेचू सिंह एडवोकेट अथवा श्री मदनमोहन चौबे एडवोकेट के माध्यम से आ रही है।"
55. A perusal of these findings reveal that the Settlement Officer of Consolidation has ventured to compare the disputed and the admitted finger prints. He has clearly done so without the assistance of an expert. A simple magnifying glass is all that has been called in aid. The law does not prohibit a Court at all from undertaking a comparison of the disputed and the admitted finger prints, but finger print identification being a perfect and highly evolved science by now, it is perilous to undertake an unassisted enterprise of this kind for any Court. In the event, for any reason should the assistance of an expert be not forthcoming, the essential requirement for a Court to record a valid finding about the identity or dissimilarity of the admitted and the disputed finger prints, is to support them by reasons familiar to the science of finger print examination. The Court if left unassisted by an expert to compare specimen of finger prints that are disputed and admitted, must first ascertain that the specimens are clear and discernible. Hazy and blurred specimens cannot be compared without the aid of professional tools and devices, which the experts alone are trained to handle. Of course, with the assistance of expert opinion, it is for the Court to record conclusions based on reasons about the identity or the variance of the admitted and the disputed finger/thumb impressions. Ultimately, it is the Court's decision that clinches the issue and not the expert's opinion. The Court's decisions where assisted by expert opinion, whether a solitary one or two divergent opinions, must rest on sound reasons recorded by the Court to accept one or to reject the other. In situations, however, where the Court is left to fend for itself, it must go about the exercise of forming its opinion with assistance of learned Counsel and on parameters known to the science of finger print identification. The opinion finally expressed must be based on relevant and commensurate reasons. It certainly cannot be an ipse dixit of the Presiding Officer. The statutory provisions that govern and regulate the jurisdiction and powers of the Court, to undertake a comparison of the disputed and the admitted finger print specimens, are the provisions of Section 73 and 45 of the Indian Evidence Act, 1872. In the case of an Authority invested with judicial functions, like the Consolidation Authorities to whom the last mentioned provisions of the Evidence Act may not apply proprio vigore, the same would apply on principle.
56. The law on the issue of comparison of finger print impressions in the context of the Court's jurisdiction and power to undertake it has been authoritatively laid down by their Lordships of the Supreme Court in Thiruvengadam Pillai vs. Navaneethammal and another, (2008) 4 SCC 530. It has been held in Thiruvengadam Pillai (supra):
"15. Section 45 of the Evidence Act, 1872 relates to "opinion of experts". It provides inter alia that when the court has to form an opinion as to identity of handwriting or finger impressions, the opinion upon that point of persons specially skilled in questions as to identity of handwriting or finger impressions are relevant facts. Section 73 provides that in order to ascertain whether a finger impression is that of the person by whom it purports to have been made, any finger impression admitted to have been made by that person, may be compared with the one which is to be proved. These provisions have been the subject-matter of several decisions of this Court.
15.1. In State v. Pali Ram [(1979) 2 SCC 158: 1979 SCC (Cri) 389] this Court held that a court does not exceed its power under Section 73 if it compares the disputed writing with the admitted writing of the party so as to reach its own conclusion. But this Court cautioned: (SCC p. 168, para 30) "30. ... Although there is no legal bar to the Judge using his own eyes to compare the disputed writing with the admitted writing, even without the aid of the evidence of any handwriting expert, the Judge should, as a matter of prudence and caution, hesitate to base his finding with regard to the identity of a handwriting which forms the sheet anchor of the prosecution case against a person accused of an offence, solely on comparison made by himself. It is therefore, not advisable that a Judge should take upon himself the task of comparing the admitted writing with the disputed one to find out whether the two agree with each other; and the prudent course is to obtain the opinion and assistance of an expert."
The caution was reiterated in O. Bharathan v. K. Sudhakaran [(1996) 2 SCC 704] . Again in Ajit Savant Majagvai v. State of Karnataka [(1997) 7 SCC 110: 1997 SCC (Cri) 992] referring to Section 73 of the Evidence Act, this Court held: (SCC p. 122, paras 37-38) "37. ... The section does not specify by whom the comparison shall be made. However, looking to the other provisions of the Act, it is clear that such comparison may either be made by a handwriting expert under Section 45 or by anyone familiar with the handwriting of the person concerned as provided by Section 47 or by the Court itself.
38. As a matter of extreme caution and judicial sobriety, the Court should not normally take upon itself the responsibility of comparing the disputed signature with that of the admitted signature or handwriting and in the event of the slightest doubt, leave the matter to the wisdom of experts. But this does not mean that the Court has not the power to compare the disputed signature with the admitted signature as this power is clearly available under Section 73 of the Act."
15.2. In Murari Lal v. State of M.P. [(1980) 1 SCC 704: 1980 SCC (Cri) 330] this Court indicated the circumstances in which the court may itself compare disputed and admitted writings thus: (SCC p. 712, para 12) "12. The argument that the court should not venture to compare writings itself, as it would thereby assume to itself the role of an expert is entirely without force. Section 73 of the Evidence Act expressly enables the court to compare disputed writings with admitted or proved writings to ascertain whether a writing is that of the person by whom it purports to have been written. If it is hazardous to do so, as sometimes said, we are afraid it is one of the hazards to which judge and litigant must expose themselves whenever it becomes necessary. There may be cases where both sides call experts and two voices of science are heard. There may be cases where neither side calls an expert, being ill-able to afford him. In all such cases, it becomes the plain duty of the court to compare the writings and come to its own conclusion. The duty cannot be avoided by recourse to the statement that the court is no expert. Where there are expert opinions, they will aid the court. Where there is none, the court will have to seek guidance from some authoritative textbook and the court's own experience and knowledge. But discharge it must, its plain duty, with or without expert, with or without other evidence."
The decision in Murari Lal [(1997) 7 SCC 110: 1997 SCC (Cri) 992] was followed in Lalit Popli v. Canara Bank [(2003) 3 SCC 583: 2003 SCC (L&S) 353].
16. While there is no doubt that court can compare the disputed handwriting/signature/finger impression with the admitted handwriting/ signature/ finger impression, such comparison by court without the assistance of any expert, has always been considered to be hazardous and risky. When it is said that there is no bar to a court to compare the disputed finger impression with the admitted finger impression, it goes without saying that it can record an opinion or finding on such comparison, only after an analysis of the characteristics of the admitted finger impression and after verifying whether the same characteristics are found in the disputed finger impression. The comparison of the two thumb impressions cannot be casual or by a mere glance. Further, a finding in the judgment that there appeared to be no marked differences between the admitted thumb impression and disputed thumb impression, without anything more, cannot be accepted as a valid finding that the disputed signature is of the person who has put the admitted thumb impression. Where the court finds that the disputed finger impression and admitted thumb impression are clear and where the court is in a position to identify the characteristics of fingerprints, the court may record a finding on comparison, even in the absence of an expert's opinion. But where the disputed thumb impression is smudgy, vague or very light, the court should not hazard a guess by a casual perusal.
17. The decision in Murari Lal [(1997) 7 SCC 110: 1997 SCC (Cri) 992] and Lalit Popli [(1980) 1 SCC 704: 1980 SCC (Cri) 330] should not be construed as laying a proposition that the court is bound to compare the disputed and admitted finger impressions and record a finding thereon, irrespective of the condition of the disputed finger impression. When there is a positive denial by the person who is said to have affixed his finger impression and where the finger impression in the disputed document is vague or smudgy or not clear, making it difficult for comparison, the court should hesitate to venture a decision based on its own comparison of the disputed and admitted finger impressions. Further, even in cases where the court is constrained to take up such comparison, it should make a thorough study, if necessary with the assistance of counsel, to ascertain the characteristics, similarities and dissimilarities. Necessarily, the judgment should contain the reasons for any conclusion based on comparison of the thumb impression, if it chooses to record a finding thereon. The court should avoid reaching conclusions based on a mere casual or routine glance or perusal."
57. In the present case, what this Court finds is that the findings with regard to difference between the admitted and the disputed specimen, recorded by the Settlement Officer of Consolidation is not reasonless. But, it is virtually that. The one line reason that has been assigned is to the effect that in one specimen, the lines tend to the left whereas in the other they tend in the opposite direction, that is, right. Nothing more has been said to support his opinion by the Settlement Officer of Consolidation that the two specimens differ. So far as the Deputy Direction of Consolidation is concerned, his finding is absolutely without reasons. All that he says is that upon a comparison of the admitted thumb impression on the Vakalatnama of Sri Madan Mohan Chaubey with that on the sale deed dated 15.02.1960, executed by Sona Kunwar, undertaken with the aid of a magnifying glass, the two thumb impressions are apparently different. This kind of a finding is squarely in teeth of the law laid down by their Lordships of the Supreme Court in Thiruvengadam Pillai (supra).
58. Reverting to the findings of the Settlement Officer of Consolidation, this Court's remark earlier made that it is virtually without reasons, is to be understood in the context of reasons that are germane to identification of thumb impressions/ finger prints. As already said, the science of finger print identification is a perfect and highly evolved science. It has its own corpus of assimilated and systematized knowledge with a distinct methodology and terminology. If a Court is constrained to opine without the assistance of one or more experts, about the genuineness of a finger print/ thumb impression, its reasons must be expressed in terms understood and known to the science of finger print identification. For the purpose, the Court must look into an authoritative text book on the subject and seek assistance of Counsel, before recording findings based on reputed and recognized parameters.
59. In order to determine what would be the essential parameters of reasoning for a Court to hold that the admitted and the disputed finger prints/ thumb impressions do not agree, reference may be made to a reputed text book on the subject, Saxena's Law And Technique Relating To Identification Of Handwriting, Disputed Documents, Finger Prints, Foot Prints And Detection Of Forgeries (Third Edition, 1990) Revised by Atul Kumar Singla and Published by the Central Law Agency, Allahabad.
60. In Chapter XIX titled, ''Classification of Finger Prints for Comparison Purposes', finger prints have been classified into four main types and nine sub-types detailed in this Chapter, under the head, "Introduction". The learned Author describes these types and their sub-types as follows:
1) "Different workers have suggested their own classification systems, but in and in most of other countries of this world, Henry system of classification is prevalent, in which finger prints are classified into four main types and nine sub-types as under :-
Main types Sub-types 1. Arch type Plain Arch, Tented Arch. 2. Loop type Radial Loop, Ulnar Loop. 3. Whorl type Whorl. 4. Composite type Central Pocket Loop, Lateral Pocket Loop, Twinned Loop, Accidentals."
61. There is then in the second head of the chapter, a reference to finger print terminology. This head is titled "Finger Print Terminology". Some of the principal terms and their precise connotation, detailed by the learned Author are quoted in extenso:
"2. Finger Print Terminology Before dealing with different pattern types in detail, the basic understanding of the terminology used in finger prints is necessary.
(a) Finger One of the terminal parts of the hand is known as finger. The fingers are named as Thumb, Index finger, Middle finger, Ring finger and Little finger.
(b) Finger Print The impression of the bulb of a finger on a surface is known as finger print. When this print is not readily visible to the unaided eye, it is called latent finger print.
(c) Ridges The raised portions of the friction skin of the hands and soles are known as ridges. In the black inked impression, these ridges appear as black lines. (See figure No. XVII-4).
(d) Finger print pattern The design formed by ridges on the bulb of finger is known as finger print pattern, which can be classified.
(e) Pattern Area The area covering the portion of finger print from which the finger print pattern can be determined, is termed as pattern area.
(f) Type Lines The two inner most ridges which start parallel, diverge and surround or tend to surround the pattern area are called type lines.
(g) Delta According to Federal Bureau of Investigation, the delta in finger prints is defined as ''The Delta is that point on a ridge at or in front of and nearest the center of divergence of the type lines. The delta may be a bifurcation, an abrupt ridge ending, a dot, a short ridges, a meeting of two ridges or a point on the first recurving ridge located nearest to the center and in front of the divergence of the type lines'.
The delta which is also called ''Outer Terminus' may also be defined as The ridge characteristic nearest to the point of divergence of type lines'.
The Delta can be a bifurcation, a ridge ending, a short ridge, a ridge dot or a point on a continuous ridge as illustrated below :-
While locating delta, the examiner has to be careful in fixing the type lines and determining the point of divergence of two type lines.
(h) Core The approximate center about which the ridges form pattern is known as core.
The point of core is important for correct ridge counting and for the correct interpretation of loops and Whorls.
According to Mr. Henry the core of a loop may consist either of an even or an uneven number of ridges (termed ''rods') not joined together or it may consist of two ridges formed together at their summit (termed ''staple'). Where the core consists of an uneven number or rods, the top of the central rod is the ''point of core'. If the core is a staple, the shoulder of the staple that is farthest from the delta is taken as the ''point of the core', the nearer shoulder counting as a separate ridge. Where the core consists of an even number of rods, the two central ones are considered as joined at their summits by an imaginary neck, and, of these two, the shoulder farthest from the delta is the ''point of the core'. In Whorls circular or elliptical in form, the center of the first ring is the ''point of the core'. Where the Whorl is spiral in form the point from which the spiral begins to revolve is the ''point of the core'. ''Point of the core' is synonymous with ''inner terminus.
(i) Ridge characteristics The peculiarities in the ridges such as bifurcation, ridge ending, enclosure etc. resulting from the deviations from the normal raticulation of the ridges are known as ridge characteristics (See figure No. XVII-4).
(j) Bifurcation When one ridge splits into two ridges running in different directions, that characteristic is known as bifurcation. (See figure No. XVII-4).
(k) Ridge ending When a normally flowing ridge ends abruptly, that characteristic is known as ridge ending. (See figure No. XVII-4).
(l) Enclosures When a single ridge bifurcates and reunites to enclose some space, that characteristic is known as enclosure. (See figure No. XVII-4).
(m) Island A small ridge having only one sweat pore is known as Island. (See figure No. XVII-4).
(n) Ridge counting The number of ridges crossing or touching an imaginary line drawn between the point of core and delta of a loop pattern is known as Ridge counting.
For the determination of accurate ridge counting, the examiner must locate exact core and delta, otherwise, errors in locating these fixed points may result in wrong ridge count.
Some of the rules to be followed in the determination of ridge counting :-
1. The ridges are counted between core and delta, but the point of core and delta are not included in the count.
2. If the imaginary line passes through the enclosure, a ridge count of two is made at that time. While passing through the enclosure, the line may pass through the center or through bifurcating ends.
3. If the imaginary line touches the point of bifurcation, a ridge count of two is made at that point.
4. If the line touches a ridge dot, a count of one ridge is made at that point.
5. A white space must intervene between delta and ridge count."
(figure omitted, refer to the text book)
62. There is a wealth of other terms from this science and their characteristic types explained with reference to figures. This Court does not propose to further quote or refer to these terms, for all that is not of much relevance here. Mention of the terminology introduced by the Author has been particularly made, to serve as a reminder of the fact that reasoning based on this precise science of finger prints, must inform the Court's mind before an opinion is expressed regarding similarity or dissimilarity of admitted and disputed finger print specimen. Also, reasons given should be expressed in terms of reputed principles evolved by this science. To the comparison of finger prints, the learned Author has devoted Chapter XX in his Treatise. In this Chapter under the heading, "Comparison of pattern type', the learned Author has dealt with subject as follows:
"4. Comparison of pattern type As already discussed in Chapter XIX finger prints can be classified into four main types mainly Arch, Loop, Whorl and Composites which can be sub-classified into sub-types i.e. Plain Arch, Tented Arch, Radial Loop, Ulnar Loop, Whorls, Lateral Pocket loop, Twinned loop, Central pocket loop and Accidentals.
When the two impressions tally in their main and sub-pattern types, it means that they belong to the same general class and there is a need to compare their individual characteristics. Without comparing them further and in details, no definite opinion can be formed/ given about their identity or non-identity.
When the two finger prints do not tally in their main pattern type e.g. if one finger print is of Whorl type and the other is of loop type, or they tally in the main pattern type, but differ in the sub-pattern type e.g. if both the impressions are loop type, but one of them is opening towards Left and the other is opening towards Right, then it means that they do not belong to the same general class, hence they are definitely non-identical. (See figure Nos. XX-2,3)"
63. Further on, the learned Author has dealt with the topic of ''Comparison of Individual Ridge Characteristics' in the following words:
"5. Comparison of Individual Ridge characteristics When two finger prints tally in their main pattern type and sub-pattern type, or when their pattern type cannot be determined due to one or the other reason, the confirmation test to declare them identical or non-identical, rests on the comparison of their individual ridge characteristics such as bifurcation, ridge ending, enclosure, ridge dot, island etc. In short, it can be said that the true basis for comparison of finger prints is the comparison of their individual ridge characteristics.
When two finger prints tally in their main and sub-pattern type and sufficient number of ridge characteristics in their nature, positioning and number of ridges intervening between them, they are surely identical with each other and impressed by one and the same finger. (See figure No. XX-4) When two finger prints tally in their main and sub-pattern types, but they differ in the ridge details, they are non-identical impressions impressed by different fingers. (See figure No. XX-5) 4)"
64. The learned Author has then proceeded to discuss the number of points in finger prints sufficient to establish their identity. He has expressed himself on this issue going by the contemporary view at the time when the Treatise under reference was authored. Six points with identity of pattern are sufficient to opine that two impressions come from the same digit. What is further required about these six points, the learned Author has dilated. All that need not detain this Court, for here is a case where an opinion about disagreeable identity has been expressed by the Authorities below. On the issue as to what are the essentials required to hold opinion that two finger prints are non-identical, the learned Author has expressed the requirement in the following words, mentioned under a separate head, in Chapter XX:
"8. How many points are necessary to declare the non-identity of finger prints ?
Two finger prints can be declared non-identical on even a single point of material difference between them e.g. if two finger prints differ in their main pattern type or sub-pattern type or ridge counting or ridge tracing or in their ridge characteristics, they have surely been impressed by different fingers."
65. Now, a look at the reason assigned by the Settlement Officer of Consolidation would show that he has said not a word about the main pattern type and if that were similar, about the sub-pattern type. He could have just opined about the main pattern types, if they were not similar to support his conclusion, and, if the main pattern type was similar, a dissimilarity in the sub-pattern type would have served as good reason. If both of those were similar, the conclusion would have to be supported by ridge counting or ridge tracing or the ridge characteristics. In the event, the two finger prints fell under the same main pattern type, for example loop type, with one opening to the left and other to the right, the conclusion would be justified. This example draws on the illustration mentioned in Saxena's Treatise under the heading, "Comparison of Pattern Type" (supra). This illustration is a case where diversion is found in the sub-pattern type. In his one line reasoning, the Settlement Officer of Consolidation says no more than this that the orientation or direction of the lines, in one of the specimens is to the left whereas in the other, to the right. There is no mention in the slightest measure about the main pattern type, which if similar, a distinction drawn on the basis of sub-pattern type, with reference to lines opening to the left or the right. The opinion expressed by the Settlement Officer of Consolidation, appears to be utterly uninformed and based on no more than what is popularly called, "common sense". This kind of a reasoning bereft of reference to the cardinal principles, evolved by the science of finger print identification, cannot be accepted to be any reason at all. The findings of the Settlement Officer of Consolidation on this count must be held to be bereft of reason. It would, therefore, vitiate the conclusion.
66. It must be remarked that substantially, all that is now required to be re-determined by the Consolidation Authorities is the issue about the identity of Smt. Sona Kunwar. This Court is mindful of the fact that those two women may no longer be available, but there is sufficient evidence on record, to decide the issue. It must also be remarked that evidence of witnesses already on record, who are close relatives of Sona Kunwar, whosoever is the genuine one, requires to be carefully evaluated by the Authorities below, both of whom are Authorities of fact. This evidence cannot be left unattended or undealt with, particularly so, as the Authority of first instance has referred to it. A reversal of the Consolidation Officer's order could not be validly done, unless oral evidence that he has considered or some other part of it, was considered and made basis of the reasoning by the Appellate or the Revisional Authority.
67. This Court has noticed earlier in this judgment that shares of parties appear to have been incongruently worked out. This is on account of the fact that Smt. Sona Kunwar has been granted a half share in the Khata in question whereas she appears to have a half share in the land in dispute. The land in dispute is a smaller part of the Khata in question. The parties have not addressed the Court on this issue but there appears to be some incongruity about the working out of their shares. This Court would not like to express itself at all about the entitlement of parties to the shares in the Khata in question, but certainly thinks that upon determination of the substantial issue hereinabove indicated, inter se the petitioner and respondent no. 3/1 to 3/3, the shares of parties in the Khata in question ought to be redetermined by the Settlement Officer of Consolidation. It is clarified that this Court does not propose to express any opinion about the shares of parties in the Khata in question which the Settlement Officer of Consolidation would be free to determine in accordance with law. It is also clarified that in working out the shares of parties in the Khata in question the legal representatives of the original petitioner Ram Dei, those of original respondents no. 3, Ramji besides the LRs of original respondent nos. 4 and 5, Jagardev and Mukhdev, respectively, shall be heard.
68. To sum up, this matter would have to go back to the Settlement Officer of Consolidation, who would be obliged to decide afresh, on the basis of evidence on record or some further evidence, if forthcoming. The issue whether the sale deed dated 15.02.1960 was executed by Sona Kunwar or by an impostor shall be gone into and decided. To this end, the Settlement Officer of Consolidation would have to decide the question whether Sona Kunwar-I or Sona Kunwar-II is the genuine person. The issues/ questions that have been finally determined by this Court are no longer open to the Authorities below to examine. It is also clarified that except for the two counts on which this matter would stand remanded to the Settlement Officer of Consolidation, no other or further or fresh issues would be open to the parties to canvas.
69. In the result, this petition succeeds and is allowed in part. The impugned orders passed by the Deputy Director of Consolidation, Ghazipur dated 26.02.1985 and the Settlement Officer of Consolidation, Ghazipur dated 04.12.1972 are hereby quashed. The five appeals, originally filed by Smt. Sona Kunwar and Smt. Ram Dei shall be decided afresh by the Settlement Officer of Consolidation, after necessary substitution of the parties' legal representatives in accordance with law and hearing all parties concerned, bearing in mind what has been said in the body of this judgment. The Settlement Officer of Consolidation concerned shall endeavour to decide the appeals within six months of receipt of a certified copy of this judgment. Till decision of those appeals by the Settlement Officer of Consolidation, status quo regarding possession, nature and character of the land in dispute as exists today, shall be maintained by the parties. Costs easy.
Order Date:- 23.4.2020 Anoop