Ganesh Das v. Deputy Director of Connolidation, Bulandshahr
1984-03-02
K.P.SINGH
body1984
DigiLaw.ai
ORDER K.P. Singh, J. - This writ petition has been directed against the judgment of the revisional authority dated 5-5-1980, whereby the orders of the subordinate authorities were set aside and the case has been sent back to the consolidation officer for deciding the claims of the parties. 2. The petitioners are claiming exclusive tenancy right in the disputed land and they have asserted that the name of Wali Dad Khan was wrongly recorded. The contesting opposite parties Nos. 3 and 4 have claimed interest in the disputed property being heirs of recorded tenure holder Wali Dad Khan. The Consolidation Officer gave judgment for the contesting opposite parties and the appellate authority gave judgment for the petitioners, and in revision an affidavit was filed on behalf of the contesting opposite parties Nos. 3 and 4, which has been accepted and the case has been remanded back to the Consolidation Officer. Aggrieved by the judgment of the revisional authority 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 authority has acted arbitrarily in accepting the affidavit at the revisional stage. It has been emphasised that on the principle under the provisions of Order 11 Rule 27 C. P. C. the additional evidence could not he accepted by the revisional authority. It has also been emphasised that the controversy between the parties could not be substantiated by an affidavit as it was not covered by the provision of G. 19 C. P. C. hence the revisional authority was wrong in accepting the affidavit at the revisional stage. The learned counsel for the petitioners has also emphasised that the order of remand could not be passed to fill in lacuna in the case. 4. I have examined the contentions raised on behalf of the petitioners.
The learned counsel for the petitioners has also emphasised that the order of remand could not be passed to fill in lacuna in the case. 4. I have examined the contentions raised on behalf of the petitioners. The revisional authority has made the following relevant observations in the impugned judgment;- " ;g 'kiFk i= oyhnkn [kka dh e`R;q ds laca/k esa izLrqr fd;k x;k gSA bldk fojks/k izfri{khx.k ds }kjk fd;k x;k gSA fd pwafd ;g ,d egRoiw.kZ rF; ls lacaf/kr gS] blfy;s bldks nkSjkus cgl Lohdkj ugh fd;k tkuk pkfg,A blls Li"V gSa fd oyhnkn [kka dh e`R;q ds laca/k esa og ,d fuf'pr fof/k dks cukrk gS exj bldks vk/khuLFk U;k;ky; esa gh izLrqr fd;k tkuk pkfg;s FkkA ;g ckr Hkh rF; ls ijs gS fd fuxjkuh drkZ bl dkxt dks vk/khuLFk U;k;ky; esa D;k izLrqr ugh dj ldsA vr% U;k;fgr esa ;g mfpr gksxk fd okLrfodrk ij rFkk lgh fu"d"kZ ij igqapus ds fy;s bl rF; ij fopkj dj fy;k tk;sA pawfd blesa i{kksa ds vfUre :i ls gd o fgLls fu/kkZfjr fd;s tkrs gSaA vr% ;g n`f"Vdks.k ls Hkh bl 'kiFk i= dh dkuwuh lgr ij fopkj dj fy;k tkosA pwafd ;g 'kiFk i= dkQh foyEc ls bl U;k;ky; esa izLrqr fd;k x;k gSA tc fd fuxjkuhdrkZ igys Hkh bldks izLrqr dj ldrs FksA bl foyEc ds fy;s fuxjkuh drkZx.k gh iw.kZr;k mRrjnk;h gS vkSj blesa eqdnes dh dk;Zokgh esa foyEc gks x;k gSA blfy;s fuxjkuhdrkZ }kjk izLrqr bl 'kiFk i= dk eq0b0 ds iSlsA lRrj :i;s dsoy] ds gtkZus ds lkFk Lohdkj fd;k tkrk gS rFkk vk/khuLFk U;k;ky; esa fojks/kh i{k blds fojks/k esa dksbZ lk{; izLrqr dj ldsaA bldk volj Hkh fn;k tkrk gSA rnuqlkj ;g fuxjkuh Lohdkj dh tkrh gS rFkk izR;ofrZr dh tkrh gSA " 5. According to the decisions of this Court the provisions of the Civil Procedure Code and the Provisions of the Indian Evidence Act do not strictly apply to the proceedings before the consolidation authorities. The principles underlying those Acts only provide a guideline for deciding the disputes before the consolidation authorities. The powers of the revisional authority under S. 48 of the U.P. Consolidation of Holdings Act are very wide. If with a view to arrive at a correct conclusion the revisional authority has accepted the affidavit filed before it. I do not think that it has acted arbitrarily in accepting the affidavit. 6.
The powers of the revisional authority under S. 48 of the U.P. Consolidation of Holdings Act are very wide. If with a view to arrive at a correct conclusion the revisional authority has accepted the affidavit filed before it. I do not think that it has acted arbitrarily in accepting the affidavit. 6. It is noteworthy that the affidavit filed before the revisional authority was sworn after the date of decision by the appellate authority and therefore, it was filed before the revisional authority which accepted it and sent the case hack to the consolidation officer for affording opportunities to the parties to lead relevant evidence. with regard to that affidavit. In view of the ruling reported in 1970 Rev Dec. 378 Smt. Manbhawati Devi v. Dy. Director of Consolidation the revisional authority was fully competent to take additional evidence. The judgment of the Consolidation officer was in favour of the contesting opposite parties, whereas the judgment of the appellate authority was in favour of the petitioners and the affidavit filed before the revisional authority throws light on the controversy between the parties hence I think that the revisional authority has advanced substantial justice by accepting the affidavit at the revisional stage. Since both the parties have got opportunities to lead evidence in relation to the affidavit filed before the revisional authority, I think that none of the parties can make legitimate grievance as they have been relegated to the original position and their claims will be re -examined by the Consolidation officer. 7. According to the learned counsel for the petitioners the affidavit filed before the revisional authority runs counter to the admission made by the contesting opposite parties before the consolidation officer, hence it should not have been accepted by the revisional authority. The acceptance of an affidavit and its worth in relation to the claims of the parties are two different aspects. It would be open to the petitioners to. demonstrate the worth of the affidavit before the Consolidation Officer so as to nullify its effect, but that would he no ground for not admitting the affidavit in evidence. 8.
The acceptance of an affidavit and its worth in relation to the claims of the parties are two different aspects. It would be open to the petitioners to. demonstrate the worth of the affidavit before the Consolidation Officer so as to nullify its effect, but that would he no ground for not admitting the affidavit in evidence. 8. O. 19 of the Civil Procedure Code reads as below : "Any Court may at any time for sufficient reason order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing, on such conditions as the Court thinks reasonable : Provided that where it appears to the Court that either party bona fide desires the production of a witness for cross -examination. and that such witness can be produced. an order shall not be made authorising the evidence of such witness to be given by affidavit." 9. The contention of the learned counsel tot- the petitioners that affidavit cannot he a substantive evidence on the point involved in the present case, hence the revisional authority committed an error in admitting the affidavit in evidence is not quite correct. The bare perusal of 0. 19 of the Civil Procedure Code quoted above would indicate that the affidavit may be read in evidence in certain circumstances. It would be open to the petitioners to raise their objection in this regard before the Consolidation Officer who shall decide them strictly in accordance with law before accepting the affidavit as substantive evidence on the point of controversy. As the date of death of Wali Dad Khan is very material to decide the claims of the parties and the judgments of the subordinate authorities were non concurrent I think that the revisional court has not patently erred in admitting the affidavit in evidence, specially when it has been sworn after the date of decision by the appellate authority. To my mind by the impugned order substantial justice has been done between the parties, hence it is not a fit case for interference in exercise of writ jurisdiction. 10. In the result the writ petition fails, and is accordingly dismissed. Costs on parties.