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Allahabad High Court · body

1985 DIGILAW 1207 (ALL)

Ram Kishore v. Deputy Director Consolidation, Jaunpur

1985-12-18

B.L.YADAV

body1985
ORDER B.L. Yadav, J. - This petition Under Article 226 of the Constitution of India is directed against the orders passed by the Consolidation Authorities. The Petitioners have made a prayer that these orders may be quashed. 2. The plots in dispute are contained in Khata Nos. 21, 23, 24, 309, 202, 224, 226 and 227. In the basic year khatauni the Respondent Nos. 4 and 5 were recorded over khata Nos. 21 and 309. Similarly over other kbatas also entries were made in the names of Respondent Nos. 4 and 5 etc. The Petitioners filed an objection Under Section 9A(2) of the U.P. Consolidation of Holdings Act (hereinafter referred to as the Act) claiming co-tenancy rights on the basis that the plots were ancestral acquisition and in any case the plots were acquired during the jointness of the family with the joint family funds. But somehow the names of only contesting Respondents appear. A pedigree was given. In that pedigree the Petitioners were descendants of the branch of Ram Jatan whereas the contesting Respondents were of the branch of Harnam. 3. Respondent Nos. 4 and 5 contested the Petitioners' claim and alleged that they were the sole tenure holders and the Petitioners were not the co-tenure-holders and that the objection of the Petitioner is liable to be dismissed. 4. The Consolidation Officer partly decided the case in favour of the Petitioners. Thereafter the Petitioners preferred appeals and the contesting Respondents also filed appeals. The appeals of the Petitioners were dismissed whereas the appeals of the contesting Respondents were allowed. Revisions were filed by the Petitioners which were also dismissed by the Deputy Director of Consolidation. These orders have been challenged by the present petition. 5. I have heard the learned Counsel for the parties. On behalf of the Petitioners it was urged that the Deputy Director of Consolidation was the last court of acts but the oral evidence was not considered. These orders have been challenged by the present petition. 5. I have heard the learned Counsel for the parties. On behalf of the Petitioners it was urged that the Deputy Director of Consolidation was the last court of acts but the oral evidence was not considered. The Petitioners examined one Ram Murat Singh as PW 1, Brahma Deo as PW 2 and Rajpat as PW 3.J But the Deputy Director of Consolidation did not consider the oral evidence and similarly the Assistant Settlement Officer (Consolidation) just made a causal reference to the statement of Ram Murat Singh and did not consider other oral evidence whereas the consolidation officer has referred to the statement of Ram Murat Singh son of Ram Kishore and did not refer to other oral evidence. However, on the statement of Ram Murat the pedigree as set up by the Petitioners was held to have been proved by the Consolidation Officer. The Consolidation Officer held the Petitioners to be co-tenants in khata Nos. 21 and 309 and in respect of other khatas the Petitioners' claim was rejected. As stated above both the parties preferred appeals. But without considering the Petitioners' oral evidence it was held that the pedigree set up by the Petitioners was not proved and the Petitioners were not co-tenants even in respect of khata Nos. 21 and 309. 6. On behalf of the contesting Respondents it was urged that the oral evidence has been considered and it was not necessary to refer the oral evidence in detail. 7. Having heard the learned Counsel for the parties I am of the opinion that the petition should succeed. In the instant case it is clear from the order of the Assistant Settlement Officer (Consolidation) that he did not refer to any oral evidence nor did he refer any witness by name only this much is stated that Sri Ramkishore was an old man and he did not come in the witness box. He did not refer any evidence at all but it was held by him that the pedigree set up by the Respondents was proved. Similarly, the Deputy Director of Consolidation did not apply his mind to the oral evidence at all. He did not refer any evidence at all but it was held by him that the pedigree set up by the Respondents was proved. Similarly, the Deputy Director of Consolidation did not apply his mind to the oral evidence at all. I am of the opinion that the Deputy Director of Consolidation was exercising his jurisdiction Under Section 48 of the Act the pedigree set up by the Petitioners was sought to be proved by oral evidence as also by the documentary evidence. But the oral evidence was not referred to nor was any aspect of the oral evidence discussed. Oral evidence in such a case where plea of co-tenancy has been raised was, very much important particularly in view of the fact that the consolidation Officer has referred to the oral evidence in detail and has also relied upon the same. It is well settled that the Deputy Director of Consolidation should refer to the oral evidence and after discussing the same he should either rely upon or he may reject them. It is also settled that the power of the Deputy Director of Consolidation under Section 48 of the Act was much wider and comprehensive. I need not emphasise that the appellate or the revisional court did not have that advantage of watching the demeanor of the witnesses nor it had the witnesses before it nor it has observed the manner in which the witnesses gave their testimony. When there appears to be a conflicting oral evidence on any matter hi issue and the findings turn upon the credibility of the witnesses, the general rule is that the appellate or the revisional court must consider the oral evidence in great detail and it can reverse the finding of the trial court only in that event that some special features about the evidence have escaped notice of the trial court. In other words, there must be sufficient balance about the credibility or otherwise of the evidence. 8. In the instant case the Deputy Director of Consolidation appears to have been swayed with the fact that some document appears to be forged. But for that the matter has not been thrashed out in detail and sufficient reasons had not been recorded for holding those documents as forged. 8. In the instant case the Deputy Director of Consolidation appears to have been swayed with the fact that some document appears to be forged. But for that the matter has not been thrashed out in detail and sufficient reasons had not been recorded for holding those documents as forged. After considering the evidence on record and if necessary, after taking the evidence of the Hand Writing Expert it can be held that some of the documents were forged, the finding to that effect must be recorded. 9. I am of the opinion that the judgment rendered by the Deputy Director of Consolidation is cryptic. No doubt no form of judgment has been prescribed for the Consolidation Authorities as it has been prescribed for the Civil Court Under Order XII Rule 31 Code of Civil Procedure and Order XX Rule 4(2) Code of Civil Procedure but nevertheless the judgment of the consolidation authorities should clearly indicate that they have applied their minds to the controversy before them. They should formulate points for determination, the decision on each point and reasons for the decision. There should not only be findings on each point but they should state evidence and how it helps applicant or the opposite party. There should not be colorable pretence of considering evidence. The judgment should not be short and unintelligible as it is in the present case. The oral and documentary evidence must be referred and discussed. The reasons must be assigned for accepting oral evidence or for rejecting the same. Similar reasons must be assigned for either believing or disbelieving the documents. In terms provisions of Order XII Rule 31 or Order XX Rule 4(2) Code of Civil Procedure may not apply but its substance and spirit have to be made applicable as rights of the parties are finally adjudicated upon, by the consolidation authorities particularly by Deputy Director of Consolidation. The discussion in the judgment must indicate that the litigants have been given a fair deal. It is immaterial as to who loses or who succeeds. The judgment of the Deputy Director of Consolidation is far from satisfactory. 10. In view of the discussions made herein before I am of the opinion that the judgment of the Deputy Director of Consolidation cannot be sustained. 11. It is immaterial as to who loses or who succeeds. The judgment of the Deputy Director of Consolidation is far from satisfactory. 10. In view of the discussions made herein before I am of the opinion that the judgment of the Deputy Director of Consolidation cannot be sustained. 11. In the result, the petition succeeds and it is accordingly allowed and the order of the Deputy Director of Consolidation dated 16.04.1971 is quashed and he is directed to decide the revision afresh in, accordance with the principles of law and in the light of the observations made above. There shall, however, be no order as to costs.