Kailash Singh v. Commissioner, Varanasi — 1984 DIGILAW 938 (ALL)

ORDER K.P. Singh, J. - This writ petition has been directed against the judgment of the re visional court dated 12-9-1977 whereby the petitioner's revision petition has been dismissed as not maintainable. 2. Before me the learned counsel for the contesting opposite party has seriously contended that the petitioner has not approached this Court with correct allegations, hence the writ petition should be dismissed outright. According to him the revision petition was filed before the revisional court on 23-4-1963 but the petitioner has wrongly asserted that the revision petition was filed on 1-2-1963. Therefore, the petitioner made false representation to this Court while obtaining the admission of the writ petition, hence the writ petition should be dismissed and the correctness of the order of the second appellate court should not be examined on merits in the circumstances of the present case. The learned counsel for the petitioner (?) placed reliance upon the rulings reported in AIR 1983 SC 622 Dr. Vijai Kumar Kathuriva v. State of Haryana, AIR 1960 All 164 , Harbans Lal Arora v. Div. Supdt. Central Railway, Jhansi and AIR 1951 All 746 (FB) Asiatic Engineering Company v. Achhru Ram and has emphasised that due to incorrect statements about filing of the revision petition on 1-2-1963 in the present case, the writ petition should be dismissed outright. 3. The learned counsel for the petitioner has tried to justify his stand that the revision petition was really filed on 1-2-1963 and that the revision petition was maintainable before the revisional court but it has been incorrectly dismissed as not maintainable. 4. Since the counsel for the parties had joined issue on the above question regarding .the date of filing of the revision petition, I granted them time to substantiate their claims and I had also called for a report from the revisional court and ultimately I summoned the record of the revisional court to arrive at the true position. After hearing the learned counsel for the parties and examining their relevant records I think that the contention of the learned counsel for the contesting opposite parties that the revision petition was really filed on 23-4-1963 is correct. After hearing the learned counsel for the parties and examining their relevant records I think that the contention of the learned counsel for the contesting opposite parties that the revision petition was really filed on 23-4-1963 is correct. The suggestion of the learned counsel for the petitioner that the revision petition was really filed on 1-2-1963 and thereafter due to mistake on the part of the officials in the revisional court it could not be registered at the relevant time and it was later on registered on 23-4-1963 does not appear to me as correct and acceptable in the circumstances of the present case. But, it appears that the petitioner had instructed his counsel to file the revision petition before 1-2-1963 and the memo of revision petition was prepared and bore signature of the petitioner's counsel dated 1-2-1963 but somehow it appears not to have been filed before 23-4-1963. In view of the circumstance that the memo of revision petition bears the signature of one of the counsel for the petitioner who noted the date under his signature as 23-4-1963 and in view of the serial number of the revision petition in the register of institution of the revision petitions, I think that the contention raised on behalf of the contesting opposite parties that the revision petition was filed on 23-4-1963 appears as correct. Despite sufficient time granted to the counsel for the petitioner, the petitioner has not been able to file affidavit of the counsel who had noted the date as 23-4-1963 on the memo of revision petition, I think that the petitioner has utterly failed to establish that the revision petition was filed on 1-2-1963 in the circumstances of the present case. 5. As regards the contention of the learned counsel for the contesting opposite parties that the writ petition should be dismissed because of incorrect statement regarding the date of filing the revision petition and wrong stand taken by the counsel for the petitioner, I think that the contention should not be accepted in the circumstances of the present case. No doubt, wrong date for filing the revision petition has been mentioned and wrong stand has been taken by the counsel for the petitioner in this connection, yet it does not not appear to me that the petitioner succeeded in obtaining admission of the writ petition due to wrong facts or wrong stand. No doubt, wrong date for filing the revision petition has been mentioned and wrong stand has been taken by the counsel for the petitioner in this connection, yet it does not not appear to me that the petitioner succeeded in obtaining admission of the writ petition due to wrong facts or wrong stand. It is enough to mention that on an earlier occasion this court has set aside the order of the revisional court holding the revision petition as not maintainable and thereafter again the revision petition has been dismissed as not maintainable. Admission of the writ petition might have been sought on that ground and it cannot be conclusively said that the petitioner or his counsel obtained admission of the writ petition only on incorrect facts, Looking to the grounds of attack in the writ petition it can also be safely inferred that the petitioner did not emphasise the circumstance that the revision petition was filed on 1-2-1963, hence it was maintainable. In short, the incorrect statement about the date of filing the revision petition is not a material fact in the present case, hence I think it would not be proper to dismiss the writ petition on the ground suggested by the learned counsel for the opposite parties. The objection raised on behalf of the contesting opposite parties in this regard fails. I have no quibble to the dictum of law laid down in the rulings mentioned by the learned counsel far the opposite parties but they are inapplicable in the facts and circumstances of the present case. 6. The learned counsel for the contesting opposite parties has relied upon a large number of rulings mentioned in 1970 All LJ 1381 Ram Singh v. Dy. Director of Consolidation at Meerut, 1971 Rev. Dec. 494, Smt. Ram Kali N. Dy. Director of Consolidation, 1973 Rev. Dec. 446 : (1974 All LJ 5): Ram Niranjan Singh v. Rangy Awadh Singh and (1977) 3 All LR 163: (AIR 1977 NOC 223) Shakoor v. State of U.P. for the proposition that the revision petition was not maintainable and the revisional court was fully justified in holding that the revision petition was not maintainable. Director of Consolidation, 1973 Rev. Dec. 446 : (1974 All LJ 5): Ram Niranjan Singh v. Rangy Awadh Singh and (1977) 3 All LR 163: (AIR 1977 NOC 223) Shakoor v. State of U.P. for the proposition that the revision petition was not maintainable and the revisional court was fully justified in holding that the revision petition was not maintainable. After hearing the learned counsel for the parties and examining the provisions of S. 48 of the U.P. Consolidation of Holdings Act and the rulings of this Court, 1 think that no revision lay against the order of the second appellate court. Therefore, the petitioner cannot successfully challenge the impugned judgment of the revisional court. 7. In view of the above circumstance the learned counsel for the petitioner suggested that the correctness of the judgment of the second appellate court be examined by this Court as both the orders have been challenged in the present writ petition. The learned counsel for the contesting opposite parties has opposed the prayer on the ground that the petitioner had not come with correct facts. hence merits of his claim should not be gone into. In nay opinion, the petitioner is not much at fault. He had instructed his counsel to file the revision petition before 1-2-1963, hence his stand that the revision petition was filed on 1-2-1963 is not such an incorrect statement that his claim on merits may not be examined by this Court. Overruling the objection of the learned counsel for the opposite party, I proceed to examine the claim of the petitioner on merits. 8. The learned counsel for the petitioner contended that the revision petition was maintainable in the circumstances of the present case because at the earlier occasion the revision was sent back to he decided by the revisional court on merits, hence it could not be dismissed on the ground of non- maintainability. A technical argument was advanced that the order of remand was passed by this Court on 20-9-1968, hence even if that order was erreneous. it was incumbent upon the revisional court to have decided the revision petition on merits. It is not disputed that in view of various authorities of this Court the second appellate court was not subordinate to revisional court which has decided the revision petition, hence the revisional court has not patently erred in dismissing the revision petition as not maintainable. it was incumbent upon the revisional court to have decided the revision petition on merits. It is not disputed that in view of various authorities of this Court the second appellate court was not subordinate to revisional court which has decided the revision petition, hence the revisional court has not patently erred in dismissing the revision petition as not maintainable. 9. The learned counsel for the petitioner attacked the judgment in the second appeal on the ground that the petitioner had acquired sirdari right in view of the provisions of Chapter IXA of the U.P. Zamindari Abolition and Land Reforms Act and his claim was fully established in view of Z.A. Form 101. Another contention raised on behalf of the petitioner is that the petitioner had acquired sirdari right on the basis of adverse possession for more than statutory period. Last contention raised on behalf of the petitioner against the judgment of the second appellate court is that oral evidence adduced by the petitioner in support of his claim has not been examined, hence the impugned judgment of the second appellate court should be quashed. 10. The learned. counsel for the contesting opposite parties has tried to refute the contention raised on behalf of the petitioner. According to him Z.A From 101 is not conclusive for recognising the claim of the petitioner in the disputed land. He has also submitted that on the oral evidence led by the petitioner his claim for acquiring right on the basis of continuous possession for more than statutory period without the consent of the tenure holders has not been substantiated. He has also submitted that the consideration of oral evidence on record would not establish the claim of the petitioner, hence even the impugned judgment of the second appellate court does not call for any interference by this Court. 11. I have examined the contentions raised on behalf of the parties about the correctness of the judgment in the second appeal. No doubt, the oral evidence has not been properly considered by the consolidation authorities but the oral evidence attached by the petitioner with the supplementary affidavit of Kamlesh Singh filed on 8-11-1982 indicates that the petitioner had riot cultivated the land in dispute without the consent of the tenure holder. Therefore. the petitioner's claim based on adverse possession for more than statutory period could not be accepted. Therefore. the petitioner's claim based on adverse possession for more than statutory period could not be accepted. A large number of rulings were cited by the learned counsel for the petitioner to demonstrate that the impugned judgment of the second appellate court suffered from patent error due to non- consideration of oral evidence. Since the petitioner's oral evidence has been attached with the supplementary affidavit and I have looked into it. I do not find that the impugned judgment of the second appellate court can be interfered with on technical grounds that oral evidence had not been properly examined and adhered to. When oral evidence does not prove the claim of the petitioner, its non- consideration would not vitiate the judgments. 12. As regards the petitioners' claim under S. 240(g) of the U.P.Z.A. and L.R. Act, it is noteworthy that the second appellate court has not accepted their claim on the following observations in paragraph 5 of its judgment. "As such there is no sufficient material to accept the consequences of section 240J in the present case. The learned counsel for the respondent has also not presented his claim on this ground." 13. In the present case U.P.Z.A. Form No. 111 has not been filed nor any order has been produced before this Court recognising the claim of the petitioner under S. 240(g) of the U.P.Z.A. and L.R. Act and since the second appellate court has not accepted the claim of the petitioner for want of sufficient material, I am unable to characterise the impugned judgment as patently erroneous in not recognising the claim of the petitioner under S. 240(g). 14. Before me the learned counsel for the petitioner has not been able to substantiate his points that the petitioner had really acquired right in the disputed land either under the provisions of S. 240(g) of the U.P.Z.A. and L.R. Act or on the basis of his continuous possession for more than statutory period without the consent of the tenure holder. The oral evidence attached with the supplementary affidavit does not conclusively prove the claim taut forward by the petitioner regarding acquisition of title to the disputed land on the basis of adverse possession. In my opinion, even though oral evidence was not properly considered by the consolidation authorities but the same fails to establish the claim put forward by the petitioner. 15. In my opinion, even though oral evidence was not properly considered by the consolidation authorities but the same fails to establish the claim put forward by the petitioner. 15. In view of the above discussions, all the contentions raised on behalf of the petitioner fail and the writ petition deserves dismissal. Accordingly, I dismiss the writ petition but I make no order as to costs.