Joga v. Dy. Director of Consolidation, Varanasi — 1985 DIGILAW 287 (ALL)

ORDER D.N. Dubey, J. - This petition is directed against the order dated 18-4-1974 of the Deputy Director of Consolidation, Varanasi dismissing the revision of the petitioner under S. 48 of the U.P. Consolidation of Holdings Act (hereinafter referred to as the Act.) 2. In the basic year the petitioner was recorded as Asami of the land in dispute. He filed objection u/s. 9-A(2) of the Act claiming that the Zamindar of the land had executed a patta in his favour prior to the abolition of Zamindari in the State and he has been in possession of the land for over last 30 years and therefore he was sirdar thereof and the entry of Asami in his favour in revenue records was incorrect which should be corrected. The Consolidation Officer dismissed the objection of the petitioner on 15-9-1973 on the finding that as the land was part of a pond no sirdari rights could accrue in his favour. The petitioner filed appeal before the Settlement Officer Consolidation which was dismissed on 15-12-1973. The petitioner thereafter filed revision to the Deputy Director of Consolidation but it was also dismissed on 18-4-1974. 3. Feeling aggrieved the petitioner has come up to this Court under Article 226 of the Constitution of India. 4. I have heard the learned counsel for the parties and have perused the record. 5. The learned counsel for the petitioner contended that the Deputy Director of Consolidation was not legally justified in rejecting the entire oral and documentary evidence of the petitioner on the ground that it did not find support from the revenue entries. He further contended that the view of the Deputy Director of Consolidation that the admission made by the Pradhan in favour of the petitioner before the Consolidation Officer could not be read in evidence as no prior permission of the sub-Divisional Officer, as required under R. 110-A(2) of the U.P. Zamindari Abolition and Land Reforms Rules (hereinafter referred to as the Rules) was obtained. On the other hand the learned counsel for the Gram Sabha has contended that the writ petition is concluded by concurrent finding of facts. The Deputy Director of Consolidation has dismissed the revision after considering the entire evidence on record on the specific finding that the petitioner did not mature sirdari rights in the land in dispute. On the other hand the learned counsel for the Gram Sabha has contended that the writ petition is concluded by concurrent finding of facts. The Deputy Director of Consolidation has dismissed the revision after considering the entire evidence on record on the specific finding that the petitioner did not mature sirdari rights in the land in dispute. So far the admission of the Pradhan is concerned, he submitted that as no prior permission of the Sub Divisional Officer as required under R. 110-A(2) of the Rules was obtained, it could not be read in evidence. According to him the Deputy Director of Consolidation did not commit any error in dismissing the revision of the petitioner and that there was nothing in his order which may warrant interference by this Court under Article 226 of the Constitution. 6. Having considered the arguments of the learned counsel for the parties, I am of the opinion that this writ petition deserves to be allowed. The Deputy Director of Consolidation was not legally justified in brushing aside the entire documentary and oral evidence of the petitioner on the ground that it did not find support from the revenue entries. It is now well settled that the revenue entries are not conclusive and they may well be disproved from other evidence and as such it was incumbent upon the Deputy Director of Consolidation to have considered the entire evidence of the petitioner independent of the entries and then to ascertain as to whether the revenue entries were correct. The Deputy Director of Consolidation, not having done so, has committed an error apparent on the face of record. In my opinion the view of the Deputy Director of Consolidation that as the Pradhan did not obtain prior permission of the Sub Divisional Officer as required under R. 114-A(2) of the Rules, the admission made by him before the Consolidation Officer could not be read in evidence, is also incorrect. In my opinion the view of the Deputy Director of Consolidation that as the Pradhan did not obtain prior permission of the Sub Divisional Officer as required under R. 114-A(2) of the Rules, the admission made by him before the Consolidation Officer could not be read in evidence, is also incorrect. R. 114-A(2) relied upon by the Deputy Director of Consolidation reads as under : "Notwithstanding anything in sub-rule (1), the Chairman of the Land Management Committee or the member so authorised by the Chairman of the Committee shall not admit a claim or enter into a compromise or an agreement with the opposite party in any suit or proceeding, or withdraw any suit or proceeding without obtaining prior permission of the Assistant Collector in-charge of the sub-division or the Tahsildar, not being the presiding officer of the Court in which the suit or proceeding is pending. An application admitting a claim or incorporating a compromise or an agreement or for the withdrawal of the suit or proceeding shall be accompanied with the order duly sealed with the seal of the office of the Assistant Collector in-charge of the sub-division or the Tahsildar, as the case may be. Where the aforesaid application or a written statement compromising or admitting a claim in whole or in part or the application for the withdrawal of the suit or proceeding is not accompanied with an authentic order of the Assistant Collector in-charge of the sub-division or the Tahsildar as the case may be, permitting the compromise or admission of the claim or withdrawal of the suit or proceeding, the same shall be deemed to be without authority and shall not be taken notice of by the panel lawyer or the Court, who shall in such a case call for a fresh and duly authorised application or written statement within a period of thirty days, and intimation of this direction shall be given to the Assistant Collector in-charge of the sub division or the Tahsildar, as the case may be." 7. This rule provides that Chairman of the Land Management Committee or a member so authorised by the Chairman or the Committee shall not admit a claim or enter into a compromise or an agreement with the opposite party in any suit or proceeding or withdraw any suit or proceeding without obtaining prior permission of the Assistant Collector in-charge of the sub-division or the Tahsildar, not being the presiding officer of the Court in which the suit or the proceeding is pending. Undoubtedly the admission made in a statement in a Court by a Pradhan is not covered by the terms 'compromise' or 'agreement' and now it has to be seen whether it is covered by the phrase 'admit a claim'. The learned counsel for the Gram Sabha submitted that the phrase 'admit a claim' would also include admitting a claim during the statement in a Court. But this argument does not find support from the latter part of the clause which provides that an application admitting a claim or incorporating a compromise or an agreement or for withdrawal of the suit or proceedings shall be accompanied with the order duly sealed with the seal of the office of the Assistant Collector in-charge of the sub-division or the Tahsildar as the case may be. It further provides that where the aforesaid application or the written statement compromising or admitting a claim in a whole or in part or the application for withdrawal of the suit or proceeding is not accompanied with an authentic order of the Assistant Collector in-charge of the sub-division or the Tahsildar, as the case may be, permitting the compromise or admission of the claim or withdrawal of the suit or proceedings, the same shall be deemed to be without authority and shall not be taken notice of by panel lawyer or the Court who shall, in such a case, call for a fresh and duly authorised application or written statement within a period of thirty days and intimation of this direction shall be given to the Assistant Collector in-charge of the sub-division or the Tahsildar as the case may be. It is thus quite clear that prior permission of the Assistant Collector/Tahsildar is necessary only when an application admitting a claim or incorporating a compromise etc. is moved and not for the admissions recorded in a Court of law. 8. It is thus quite clear that prior permission of the Assistant Collector/Tahsildar is necessary only when an application admitting a claim or incorporating a compromise etc. is moved and not for the admissions recorded in a Court of law. 8. Incidentally S. 127-B(4) and S. 128(2)(k) under which R. 110-A has been framed by the State Government deal with entering into an agreement or compromise reference to or withdraw from any suit or other proceeding on behalf of the Gaon Sabha' and do not cover the admissions made in a statement recorded in a Court of law and as such neither the State Government was competent to frame any rule with respect to statements recorded in a Court of law nor in fact it has done so. This is a clear indicative of the fact that the State Government never intended to provided for prior approval of the Sub-Divisional Officer etc. for making any admission or concession during statements recorded in a Court of law. Moreover, if we accept the contention of the learned counsel for the Gaon Sabha that no admission or concession could be made by a Pradhan of the Gaon Sabha during statements recorded in a Court of law, very strange consequences would follow. In that event a Pradhan of the Gaon Sabha can enter into the witness box with complete immunities as no part of his statement would adversely affect the interest of the Gaon Sabha. This will, for all practical purposes, result in depriving a person against whom such a witness appears, of his valuable right of cross-examination. Right of cross-examination is a valuable right and it is the cross-examination which generally helps a Court in arriving at a correct conclusion. If the R. 110-A is interpreted to cover admissions made by Pradhan of a Gaon Sabha in a Court of law also it will result in a hostile discrimination between the persons similarly situated inasmuch as while the admission made by a party or his witness in his statement would be considered in evidence admissions made by Pradhan and the other witnesses of the Gaon Sabha would not be taken into consideration which is not legally permissible. In my opinion once a witness appears in the witness box on behalf of a particular person then what value has to be attached to his statement, is to be judged under the provision of the Indian Evidence Act and Civil P.C. etc. and not by cl. 2 of this Rule and, therefore, once the Pradhan of the Gram Sabha had appeared before the Consolidation Officer as a witness, it was for the Court to see what importance should be attached to his statement and it could not be guided by the provisions of this rule. Moreover this rule does not authorise the Court to reject the application or compromise but provides that the Court shall call for a fresh and duly authorised application or written statement within the period of 30 days and intimation of this direction shall be given to the Assistant Collector in-charge of the sub-division or the Tahsildar as the case may be. Therefore also the Consolidation authorities were not legally justified in ignoring the statement of the Pradhan for alleged non compliance of R. 110-A(2) of the Rule. It is relevant to point out here that in this particular case Pradhan never admitted the claim of the petitioner that he had acquired sirdari rights in the land in dispute. What he has stated in his statement, was the factum of possession over the land and the nature thereof. In my opinion a Pradhan cannot be compelled under R. 110-A(2) of the Rules to tell a lie in Court of law so as to deny even the fact which he feels to be correct according to his personal knowledge. In other words if the land in dispute was not a pond and that the petitioner has been in possession thereof over last thirty years, the Pradhan was not bound to deny this in the Court of Law in view of provisions of R. 110-A(2) of the Rules. 9. In the result, the writ petition succeeds and is allowed and the order dated 18-4-1974 of the Deputy Director of Consolidation is quashed. He is directed to decide the rights of the parties afresh in accordance with law in the light of the observations made above. In the circumstances of the case, I direct the parties to bear their own costs.