Raj Kumari v. D. D. C — 1982 DIGILAW 232 (ALL)

JUDGMENT K.P. Singh, J. - By means of this writ petition the petitioners have prayed for questioning the judgment of the District Deputy Director of Consolidation, Ghazipur dated 11-1-1977, whereby the revision petitions filed by the petitioners were dismissed. 2. On the death of Jamuna Misir the contesting opposite parties applied for being mutated under Section 12 of the U.P. Consolidation of Holdings Act (hereinafter referred to as the Act). On the basis of their objections cases nos. 1348, 1385 and 1386 were registered and they were decided by the Assistant Consolidation Officer through his order dated 5-1-1975. The petitioners had also allegedly hied applications under section 12 of the Act for being mutated in place of Jamuna Misir. According to the pedigree mentioned in paragraph 1 of the writ petition, the contesting opposite parties in the present writ petition are Jamuna Misir's father's brother's son and grandsons whereas the petitioners are daughter and son-in-law of the deceased Jamuna Misir. It appears that the applications under section 12 of the Act filed by the contesting opposite Parties were decided by the Assistant Consolidation Officer through his order dated 6-1-1976, when the petitioners came to know about the order passed by the Assistant Consolidation Officer in favour of the contesting opposite parties they filed revision petitions with application under section 5 of the Indian Limitation Act which have been dismissed by the revisional court through the impugned judgment dated 11-1-1977. Aggrieved by the judgment of the revisional court the petitioners have approached this Court under Article 226 of the Constitution. 3. The learned counsel for the petitioners has contended before me that the revisional court committed an error apparent on the face of the record in dismissing the revision petitions on the ground of limitation according to him when the revisional court had issued notice on the revision petitions it was obligatory on the part of the revisional court to decide the revision petitions on merits and could not dismiss the revision petitions on the ground of limitation. In this regard the learned counsel for the petitioners has placed reliance upon the ruling reported in Abdul Zunaid v. Deputy Director of Consolidation and others, 1972 A.L.J. 435 and Ramakanl Singh v. Deputy Director of Consolidation, U.P. Lucknow, 1974 (Suppl.) R.D. 262. In this regard the learned counsel for the petitioners has placed reliance upon the ruling reported in Abdul Zunaid v. Deputy Director of Consolidation and others, 1972 A.L.J. 435 and Ramakanl Singh v. Deputy Director of Consolidation, U.P. Lucknow, 1974 (Suppl.) R.D. 262. It has also been contended that in Parsidh Narain Rai v. Deputy Director of Consolidation, Azamgarh, 1980 R.D. 54 (Sum.) : 1979 A.L.J. 764. I did not notice paragraph 6 of the ruling reported in Ramakant Singh v. Deputy Director of Consolidation, U.P. Lucknow with the result that i committed a mistake in expressing opinion about determination of the question of limitation by the revisional court in the facts and circumstances of that case. 4. The second contention raised on behalf of the petitioners is that the revisional court has patently erred in not accepting the sufficient case for the delay in preferring the revision petition by the petitioners. According to the learned counsel for the petitioners the mere fact that the affidavit was filed in support of the application under section 5 of the Indian Limitation Act after a period of five months was no ground for discarding the affidavit specially when nothing more was stated on oath except the facts mentioned in the application under Section 5 of the Indian Limitation Act. Added to this the affidavit filed by the petitioners remained un-controverted by the contesting opposite parties in the present writ petition yet the revisional court has discarded the un-controverted affidavit. In this connection my attention was drawn to the rulings reported in Juggilal Kamlapat v. Ram Janki Gupta and another, A.I.R. 1962 Allahabad 407 and Raja Himamhu Dhar Singh v. Additional Registrar Co-operative Societies, U.P. and another, A.I.R. 1962 Allahabad 439. 5. The third contention raised on behalf of the petitioners is that the revisional court has patently erred in observing that the objections filed by the petitioners relating to cases nos. 1402. 1403 and 1404 were not presented by them hence they were not valid objections and the petitioners could not be treated as parties to the application filed by the contesting opposite parties which were dealt with by the Assistant Consolidation Officer through his order dated 5-1-1976. 6. 1402. 1403 and 1404 were not presented by them hence they were not valid objections and the petitioners could not be treated as parties to the application filed by the contesting opposite parties which were dealt with by the Assistant Consolidation Officer through his order dated 5-1-1976. 6. According to the learned counsel for the petitioners when the petitioners had filed application under Section 12 of the Act regarding heirship of Jamuna Misir deceased, the contesting opposite parties had also filed application under Section 12 of the Act regarding their names being mutated in place of deceased Jamuna Misir. The question of heirship to Jamuna Misir deceased became disputed and the Assistant Consolidation Officer had no jurisdiction to decide the same and he should have referred the question for decision to the Consolidation Officer. The ruling reported in 1981 A.W.C. 711 was cited in support of the aforesaid contention. 7. In reply the learned counsel for the opposite parties contended that the Full Bench case of this Court reported in Ramakant Singh v. Deputy Director of Consolidation, U.P. Lucknow was inapplicable to the facts and circumstances in view of the present case. Moreover, the aforesaid ruling has not Laid down that the revisional court has no option but to decide the revision petition on merits. According to him if the revision petition was much beyond time and the contesting opposite parties had raised objections regarding the question of limitation and had asserted that a valuable right bad accrued to the opposite parties, it was incumbent upon the revisional court to decide the question of limitation involved and the revisional court could dismiss the revision petitions on the ground of limitation it was emphasised that if the contentions raised on behalf of the petitioners were accepted it could lead to the result that if the revision petitions were beyond time by 10 years yet it would be decided only on merits and not on the ground of limitation. 8. Secondly it was submitted that the revisional court exercised its discretion in holding that the revision petitions filed by the petitioners were beyond time and the explanations given by the petitioner were not sufficient. This Court could not interfere with the discretion exercised by the revisional court. 8. Secondly it was submitted that the revisional court exercised its discretion in holding that the revision petitions filed by the petitioners were beyond time and the explanations given by the petitioner were not sufficient. This Court could not interfere with the discretion exercised by the revisional court. In this connection my attention was drawn to the ruling reported in Babu Ram Ashok Kumar v. Antarim Zila Parishad, A.I.R. 1964 Allahabad 534 Head Note "A". 9. The third submission made on behalf of the learned counsel for the contesting opposite parties was that event if the affidavit hied by the petitioners before the revisional court remained un-controverted it did not mean that the revisional court could not decide against the petitioners it the allegations in the affidavit were not satisfactory. The ruling reported in Bhagwandin Tiwari v. Sheoraj and others, A.I.R. 1931 Oudh 321 (2) and Mahendra Manilal Nanawati v. Sushila Mahendra Nanawati, A.I.R. 1965 S.C. 264, were cited and it was contended that the court was not bound to give judgment even according to admission and it was required of the court to judge the merit of the admission. In this view of the matter when the revisional court examined the affidavit and explanation given by the petitioners and did not accept them, it did not commit any error of law and on that ground the impugned judgment could not be interfered with. 10. Lastly, my attention was drawn to Rule 25 A, 20, 109B and 109B(2) of the U.P. Consolidation of Holdings Act and it was contended that there was no obligation on the part of the Assistant Consolidation Officer to consolidate the cases and to decide the same together. 11. According to the learned counsel for the contesting opposite parties if the cases filed by the contesting opposite parties were decided earlier no illegality has been committed by the Assistant Consolidation Officer and in the circumstances of the present case the Assistant Consolidation Officer is not guilty of any dereliction of legal duty in not consolidating the case filed by the petitioners and the contesting opposite parties, 12. I have considered the contentions raised on behalf of the parties. 13. I have considered the contentions raised on behalf of the parties. 13. As regard the first contention raised on behalf of the petitioners, 1 mink that it is not correct to contend that the revisional court under section 48 of the U.P. Consolidation of Holdings Act had no option but to decide the revision petition on merits if it has issued notice on the revision petition. The learned counsel for the petitioners has placed reliance upon the following observation in the ruling reported in 1972 A.L.J. 435 at page 436-37. "......Having regard to the object underlying Section 48 it appears to us that once the record has been called for by the subordinate authority he should not ordinarily refuse to examine the record and should check whether the inferior authority has gone wrong. So long as the record has not been called tor a person who makes an application under Section 48 may be said to be an actor on the scene but when the record has been called for it appears to us that he ceases to be an actor on the scene. Specified authority who has called for the record becomes the actor on the scene Accordingly, he should examine the record and pass such an order which will advance justice." 14. Relying upon the above observation it has been strenuously contended before me that once the notice is issued on a revision petition the revisional court is bound to decide the claims of the parties on merits and it could not dismiss the revision petition on the ground of limitation in my opinion, the aforesaid contention does not find support from the above observation relied upon by the learned counsel for the petitioners. I think that if the revision petition filed by the applicant in revision is much beyond time and no satisfactory explanation has been given by the petitioners for condonation of delay and the opposite parties take a plea that the revision petition was beyond time, it would be required of the revisional court to decide the question of limitation strictly in accordance with law. If the revisional court is not satisfied with the explanation given by the applicant in revision and rejects the revision petition after hearing the counsel for the parties. If the revisional court is not satisfied with the explanation given by the applicant in revision and rejects the revision petition after hearing the counsel for the parties. I cannot hold that the revisional court exceeds its jurisdiction in deciding the claims of the parties strictly in accordance with law by lapse of time a valuable right accrues to the opposite party in the revision petition and if the contentions raised on behalf of the petitioners are accepted it would mean that the opposite parties would be deprived of their right to raise objections on the question of limitation, If it is held that the revisional court had no option but to decide the claims of the parties on merits am could not entertain the question of limitation at the instance of the opposite parties in the revision petition, it would mean that the applicant in revision would be in a very advantageous position and without any satisfactory explanation he can assert for decision on merits. To my mind such is not the intention of law or the ruling cited by the learned counsel for the petitioners. 15. In this connection the learned counsel for the petitioners also Invited my attention to the following observation in the ruling reported in Ramakant Singh v. Deputy Director of Consolidation U.P. Lucknow, Camp at Varanasi vide paragraph 6.(2) " In other words, therefore the Director of Consolidation still has the jurisdiction to exercise the revisional jurisdiction even though the application made by the parties is barred by limitation or is detective." 16. The learned counsel for the petitioners also invited my attention to the observations contained in paragraph 17 of the Full Bench ruling (supra) and contended that it not was open to the revisional court to have dismissed the revision petition on the ground of limitation in the circumstances of the present case. According to him the revisional court was bound to decide the claims of the parties on merits and could not entertain the question of limitation raised on behalf of the opposite parties. I do not find that the petitioners counsel can take any help from the observations referred to above and relied upon by him in support of his contention. According to him the revisional court was bound to decide the claims of the parties on merits and could not entertain the question of limitation raised on behalf of the opposite parties. I do not find that the petitioners counsel can take any help from the observations referred to above and relied upon by him in support of his contention. It is quite a different thing that if the revision application filed by the applicant is beyond time and the contesting opposite parties in the revision petition raised an objection regarding limitation but the revisional court in the circumstances of a particular case chooses to exercise its suo motu powers to do justice between the parties, it can decide the claims of the parties on merits and the bar of limitation would not stand in the way of the revisional court to decide the claims of the parties on merits. If the revisional court exercises suo motu powers and decides the claims of the parties on merits none of the parties in the revision petition can take any legal objective to such a procedure in view of the decision of the Full Bench case mentioned (supra) but at any event I am not at all impressed with the contention of the learned counsel for the petitioners that it was the bounden duty of the revisional court to have decided the claims of the parties on merits and it could not entertain the question of limitation raised at the instance of the opposite party. The learned counsel for the contesting opposite parties was right in contending that if the contentions raised on behalf of the petitioners were accepted a revision petition barred by 90 years would be decided on merits and could not be dismissed on the question of limitation. According to him such is not the intention of the law and the ruling referred to by the learned counsel for the petitioners. I have no hesitation in accepting the soundness of the contention raised on behalf of the opposite parties. 17. On the second question regarding condonation of delay and satisfactory explanation given by the applicant in revision, I have examined the contentions raised on behalf of the parties. It is proper to quote the relevant finding recorded by the revisional court which is to the following effects. 17. On the second question regarding condonation of delay and satisfactory explanation given by the applicant in revision, I have examined the contentions raised on behalf of the parties. It is proper to quote the relevant finding recorded by the revisional court which is to the following effects. " Isake Atirikt Sahayak Chakbandi Adhikari Ka Adesh Dinank 5-1-76 Ka Hai Jiski Nigrani 6 Mah Bad Dinank 17-2-76 Ji Prastut Hui Hai Jabki Nigrani Kartagan Ke Kathna-Nusar Unke Bad Bhi Vahi Sahayak Ke Kathnanusar Unke Bad Bhi Vahi Sahayak Chak-Bandi Adhikari Ke Yahan Chal Rahi The. Atah Is Adesh Ke Such-Na Unko Na Hona Samnya Hudbhi Swikar Nahi Karti. Utna Hi Nahi Yadi Sachmuch Nigrani Kartagan Ko Ukt Adesh Ki Suchna Nahi Thi To Phir Unke Yah Swabhavik Tha Ki Vilame Ke Dosh Marja-Nke Prarthna Patra Ke Samarthan Men Shapath Patra Bhi Diye Hote. Parantu Aisa Na Karna Yah Darhsata Hai Ki Ukta Prarthna Patra Me Diye Gaye Karan San-Tosh Prad Nahin Hain. Nigrani Karta Ki Oar Se Ik Ik Sapath Patra Dinank 29-11-76 Ko Pura Karne Ke Liye Lagbhag 5 Mah Bad Prastut Hua Hai. Is Trah Nigrani Paryapt Vilamb Se Prastut Hui Tatha Uske Liye Diya Gaya Karan Bhi Santosh Prad Nahi Pratit Hota." 18. In the above extract two reasons have been assigned by the revisional court. Firstly, that the petitioners were prosecuting their claim before the Assistant Consolidation Officer hence it was supposed that the petitioners had knowledge of the proceeding initiated at the instance of the contesting opposite parties. Secondly, the affidavit in support of the explanation for delay in preferring the revision petition by the petitioners was filed about five months back and it was treated as to fill in lacuna. To my mind' both the reasons given by the revisional court are patently erroneous. If in the proceedings initiated at the instance of the contesting opposite parties the petitioners were not parties and the proceedings were decided in their absence it would be too much to expect that the petitioners knew about the proceedings. Moreover, the petitioners had even explanation for the delay in preferring the revision petition vide Annexure `IX' attached with the writ petition Whatever the petitioners had stated in Annexure `IX' was sworn on affidavit on 29-11-1976. Moreover, the petitioners had even explanation for the delay in preferring the revision petition vide Annexure `IX' attached with the writ petition Whatever the petitioners had stated in Annexure `IX' was sworn on affidavit on 29-11-1976. Since there is no variation in the allegations in Annexure `IX' and the affidavit filed on 29-11-1976, it is too much on the part of the revisional court to characterise the affidavit to file in lacuna on the part of the applicant in revision. 19. The perusal of Annexure `IX' and the affidavit sworn on 29-11-1976 indicates that the petitioner had resorted to true state of affairs and to discard the explanation given by the petitioners appears to me only unreasonable and arbitrary approach, hence the impugned judgment of the revisional court observing that the explanation given by the applicant in revision was not satisfactory is patently erroneous and is the result of unreasonable approach and deserves to be quashed. 20. The learned counsel for the petitioners had cited ruling to the effect that the un-controverted affidavit should have been accepted by the revisional court whereas the counsel for the opposite parties has cited rulings to the effect that in face of admissions a court can decide the truth of the allegations and would not be bound to decide in accordance with the admissions. According to the learned counsel for the opposite parties when the revisional court has not accepted the explanation of delay in preferring the revision petition and it has decided the controversies between the parties regarding condonation of delay on merits, the rinding should not be interfered with in writ jurisdiction. I have already indicated above that the finding recorded by the revisional court is the result of unreasonable approach in the facts and circumstances of the present case, hence it needs interference by the court even under its powers under Article 226 of the Constitution. The ruling cited by the learned counsel for the opposite parties and reported in Babu Ram Ashok Kumar and another v. Antarim Zila Parishad, A.I.R. 1964 Allahabad 534 does not help the contention of the learned counsel is that I should not interfere with the discretion exercised by the revisional court in the circumstances of the present case. The ruling cited by the learned counsel for the opposite parties and reported in Babu Ram Ashok Kumar and another v. Antarim Zila Parishad, A.I.R. 1964 Allahabad 534 does not help the contention of the learned counsel is that I should not interfere with the discretion exercised by the revisional court in the circumstances of the present case. In my opinion the revisional court has been swayed by irrelevant considerations and its approach to the problem is unreasonable and it has also indulged in surmises and conjectures in imputing the knowledge of the proceedings at the instance of the contesting opposite parties to the petitioners when they were not impleaded in that proceeding and they had asserted want of knowledge of the earlier proceedings on affidavit. 21. Regarding the other question under my consideration it has been contended on behalf of the petitioners that the heirship of Jamuna Misir deceased became disputed in the circumstance of the present case, hence the Assistant Consolidation Officer had no jurisdiction to decide the cases initiated at the instance of the contesting opposite parties. It was urged that the Assistant Consolidation Officer should have consolidated the cases at the instance of the petitioners as well as the cases at the instance of the contesting opposite parties and should have referred the dispute to the Consolidation Officer for decision. In this connection reliance was placed on the ruling reported in Jai Ram v. Assistant Director of Consolidation Jaunpur, 1982 R.D. 18. The learned counsel for the contesting opposite parties has submitted in reply that the aforesaid ruling is inapplicable to the facts and circumstances of the present case. He also submitted that there was no legal duty on the part of the Assistant Consolidation Officer to have consolidated the cases and to have referred the same to the Consolidation Officer, specially when it was not brought to the notice of the Assistant Consolidation Officer that the question of heirship was a disputed one. My attention has been drawn to Rules 25-A. 30 and 109-B of the U.P. Consolidation of Holdings Act by the counsel for the parties. My attention has been drawn to Rules 25-A. 30 and 109-B of the U.P. Consolidation of Holdings Act by the counsel for the parties. The perusal of the aforesaid Rules indicates that there is no legal duty cast on the Assistant Consolidation Officer to consolidate the cases pending before him in regard to a subject matter of dispute but propriety demands that if it is brought to his notice that any question under his consideration has become disputed he should consolidate the cases and stay bis hands and should refer the disputed claims for decision before the proper authority, namely the Consolidation Officer or he should make efforts for reconciliation between the parties. No doubt the ruling reported in Jai Ram v. Assistant Director of Consolidation, Jaunpur (supra) is distinguishable on facts and circumstances involved in the present case but the ratio decidendi of that case does help the contention of the learned counsel for the petitioners to the effect that the Assistant Consolidation Officer bad no jurisdiction to allow the mutation application filed by the contesting opposite parties under Section 12 of the U.P. Consolidation of Holdings Act if he had come to know about the correct fact that the petitioners had also applied for mutation under Section 12 of the U.P. Consolidation of Holdings Act, before the Assistant Consolidation Officer decided the claim of the contesting opposite parties on 3.1.1976. Here it would not be out of place to mention that the learned counsel for the petitioners during the course of argument stressed that the Assistant Consolidation Officer might have known that the question of heirship to Jamuna Misir was disputed as the cases at the instance of the petitioners and there at the instance of the contesting opposite parties were pending before him, I think that the learned counsel for the petitioners expected too much of the court and unnecessarily emphasised that the Assistant Consolidation Officer might have known the pendency of the cases and nature of the dispute between the parties before him, As the revisional court has erred in imputing knowledge to the petitioners regarding the casts and decision therein at the instance of the contesting opposite parties due to the circumstance that the petitioners were prosecuting their cases before the same Assistant Consolidation Officer, I think the learned counsel for the petitioners is also in error in emphasising that the Assistant Consolidation Officer might have known about the disputed question of heirship to Jamuna Misir and he should have referred the cases to the consolidation Officer. However, in the circumstances of the present case it is clear that the question of heirship to Jamuna Misir is a disputed one, hence that question should be decided by a competent court, namely the Consolidation Officer. The order dated 5.1.1976 passed by the Assistant Consolidation Officer (Annexure "4" attached with the writ petition) is an order behind the back of the petitioners, hence it is non est and it will have no evidentiary value when the dispute between the parties is dealt with by the Consolidation officer. 22. Lastly, it was contended before me that the revisional court had acted illegally in holding that the petitioners were not parties to the objection tiled before the Assistant Consolidation Officer as they had not signed the objections. In this connection my attention was drawn to Annexure "5" to "7" attached with the i writ petition. I find that the contents of the aforesaid annexures indicate that the petitioners were really claiming entry of their names in place of Jamuna Misir deceased and at least on Annexure "6" it appears that Mangla Pandey had signed. In this connection my attention was drawn to Annexure "5" to "7" attached with the i writ petition. I find that the contents of the aforesaid annexures indicate that the petitioners were really claiming entry of their names in place of Jamuna Misir deceased and at least on Annexure "6" it appears that Mangla Pandey had signed. For the sake of argument it may be assumed that the petitioners had not singed the applications but the applications were moved on their behalf and the irregularity committed by the petitioners was curable in law hence on this ground the petitioners' claim could not be dubbed by the consolidation authorities unless they were given proper opportunity to cure the defect and they failed to do so. The mistake, if any, on behalf of the petitioners in preferring objections under section 12 of the U.P. C.H. Act was curable and not fatal in view of the ruling of this Court and other Courts, see Subbiah Pillai alias S.S.M. Subramania Pillai v. Sankarap-andiam Pillai and others, A.I.R. 1948 Madras 369. The learned counsel for the contesting opposite parties invited my attention to Rule 24-C of the U.P. Consolidation of Holdings Act and also contended that where the objection under section 12 of the U.P. C.H. Act were not properly signed by the petitioners they were no objections and the revisional court rightly observed that the petitioners could not be treated as parties to the cases filed by the contesting opposite parties Rule 24-C reads as below : - "All objections against the statement of principles" under section 9 of the Act shall be filed in writing and shall be signed by the person making them. They shall clearly indicate the manner in which the interests of the objectors are likely to be affected." 23. To my mind, it is a too technical plea that the petitioners' objections cannot be treated as valid objections under section 12 of the U.P. Consolidation of Holdings Act due to the circumstance that some of them was not signed by the petitioners. To my mind, it is a too technical plea that the petitioners' objections cannot be treated as valid objections under section 12 of the U.P. Consolidation of Holdings Act due to the circumstance that some of them was not signed by the petitioners. The Assistant Consolidation Officer or the revisional court should have afforded an opportunity to the petitioners to cure the defect and if they failed to do so the authorities could have ignored their objections but without affording any opportunity the revisional court should not have observed that the objections of the petitioners were not valid objections nor could they be treated as parties to the cases initiated at the instance of the contesting opposite parties. When the revisional court did not think proper to condone the delay in preferring the revision petitions by the petitioners it should not nave dealt with the other contentions. However, the observation of the revisional court in treating the objections filed by the petitioners as invalid and not treating the petitioners as parties to the cases initiated at the instance of the contesting opposite parties appears to one patently erroneous and deserves to be quashed. If the aforesaid observation is not rendered negatory the claim of the petitioners cannot be properly appreciated and dealt with by the consolidation officer. A suggestion has been made on behalf of the contesting opposite parties that it is not fit case where interference should be made with the impugned judgment according to the learned counsel for the contesting opposite parties the petitioners could pursue their claims by impleading the contesting opposite parties in their objections whereas the learned counsel for the petitioners has stressed that if the impugned judgment are not quashed, the contesting opposite parties shall be armed with an order of an officer and would be in an advantageous position. I think that the propriety and ends of justice require that the impugned judgments should be quashed and the Assistant Consolidation Officer should be asked to consolidate the cases filed by the parties and to make an effort for reconciliation between them and if reconciliation is not possible, the dispute should be referred to the Consolidation Officer for proper decision. The Consolidation Officer shall decide the claims of the parties strictly in accordance with law without being moved by any observation made by the revisional court in its order dated 11.1.1977. 24. The Consolidation Officer shall decide the claims of the parties strictly in accordance with law without being moved by any observation made by the revisional court in its order dated 11.1.1977. 24. In the result, the writ petition succeeds and the impugned judgments of the The revisional court dated 11.1.1977 and that of the Assistant Consolidation Officer dated 5.1.1976 are hereby quashed and the Assistant Consolidation Officer is directed to proceed with the cases filed by the parties before him in the light of the observations made above. Parties are directed to bear their own costs.