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1984 DIGILAW 836 (ALL)

Sheo Nath v. Joint Director of Consolidation, Kanpur

1984-10-10

K.P.SINGH

body1984
JUDGMENT K.P. Singh, J. - By means of this writ petition the petitioner has prayed for quashing the judgment of the revisional court dated 9-12-1977. 2. This is the unfortunate case which once came to this Court and was sent back to the revisional court for deciding the claims of the parties in the light of the parties in the light of the observations made in the judgment of this Court dated 16-7-1976. The learned Judge in his order dated 16-7-1976 has observed as below :- "....The Deputy Director of Consolidation has now applied his mind to this aspect of the matter also. He has disposed of the whole matter by saying that the relationship between the parties was such that even if the petitioner was in possession it would be purely permissive for and on behalf of respondent no. 1. Simply because the petitioner was related to the respondent no. 1 was not a conclusive circumstance to indicate that his possession must necessarily be on behalf of the respondent no. 1. The question had to be decided on the basis of the evidence on record. For all these reasons, the order of the Deputy Director of Consolidation cannot be sustained." 3. Before me the learned counsel for the petitioner has contended again that the revisional court has failed to apply its mind to the facts and circumstances involved in the case. It has failed to discuss the merits and de merits of the oral evidence on record and it has mainly relied upon the order in a correction of papers case. He has also contended that the contesting opposite party was claiming title to the property on the basis of the gift of the disputed property to him as well as on the basis of adverse possession. The revisional court has failed to record a categorical finding regarding adverse possession or about the validity of the gift of the disputed property to the contesting opposite party, yet it has given judgment for the contesting opposite party. 4. The learned counsel for the contesting opposite party has tried to support the impugned judgment. According to him the finding of fact recorded by the revisional court is not amenable to interference by this Court in the exercise of writ jurisdiction. 4. The learned counsel for the contesting opposite party has tried to support the impugned judgment. According to him the finding of fact recorded by the revisional court is not amenable to interference by this Court in the exercise of writ jurisdiction. It has been emphasised that the case of the petitioner that the contesting opposite party was Karkun was not believed by the revisional court. It has also been found that the contesting opposite party has been in possession from 1363 Fasli onwards hence the claim of the contesting opposite party was rightly accepted by the revisional court. It has been emphasised that a court may take different view but the finding recorded by the revisional court cannot be termed as perverse or without any basis in evidence or suffering from any patent error of law which may justify interference. 5. I have considered the contentions raised on behalf of the parties. To me it appears that if nothing happened the disputed property should devolve upon the petitioner. The petitioner was recorded over the disputed land in the year 1362 Fasli after the death of his father. It appears that the name of the contesting opposite party was recorded due to an order dated 4-1-1954 passed by a revenue authority and thereafter his name continues. 6. It is also note-worthy that there is no dispute between the parties that the contesting opposite party is a close relation of the petitioner. It is true that mere relationship cannot conclusively prove that the possession of a relation must be permissive, but that it is relevant circumstance to determine as to whether the relation is in adverse possession over the property of his relation or not for the sake of arguments even if the contesting opposite party continues in possession over the disputed land, it still needs to be examined whether the contesting opposite party has really perfected title to the property of his relation on the basis of adverse possession, or in the basis of the theory of gift suggested by the learned counsel for the contesting opposite party, it is proper to mention here that mere an order in a correction of papers case or C.L.R.D. proceedings would not clothe title to a person recorded in such proceedings. The question of title in a regular competent court should be examined in the light of the pleadings and evidence or circumstances involved in the case. 7. I have a feeling that the revisional court has failed to examine the claims of the parties from correct perspective and the revisional court has failed to appreciate the observations made by a learned Single Judge of this Court in his earlier order. The impugned judgment gives me an idea that the revisional court has not appreciated the problem involved in the case. The ends of justice demand that the impugned judgment of the revisional court should be quashed and the revisional court should be asked to re-examine the claims of the parties in the light of the pleadings and evidence on record. It is also proper to observe at this stage that the revisional court must examine the question whether the petitioner was minor at the time when the correction was made in favour of the contesting opposite party and whether the minority of the petitioner has any impact upon the claims of the parties in the present case. 8. In the result, the writ petition succeeds and the impugned judgment of the revisional court dated 9-12-1977 is hereby quashed and the revisional court is directed to re-examine the claims of the parties in the light of their pleadings and evidence on record as well as in the light of the observations made above. There would be no order as to costs.