Mohar Singh v. Deputy Director of Consolidation, Kanpur
1985-04-03
K.P.SINGH
body1985
DigiLaw.ai
JUDGMENT K.P. Singh, J. - By means of this writ petition the petitioner has prayed for quashing the judgment of the consolidation authorities contained in Annexures I, II and III. 2. The petitioner had claimed an area of 5.74 acres of plot No. 14/17 situate in village Nahra Rojh, Pargana Bidhuna, District Etawah. He had claimed 2 acres land out of the area 5.74 acre on the basis of a Patta executed in his favour in the year 1962 and he had claimed Sirdari right in the remaining area on the basis of adverse and continuous possession. It appears that claim of the petitioner had been contested by the Gaon Sabha. All the consolidation authorities have given judgment against the petitioner. Aggrieved by their judgments the petitioner has approached this court under Article 226 of the Constitution. 3. The learned counsel for the petitioner has contended before me that the revisional court has patently erred in negativing the claim of the petitioner in the disputed two acre area on the ground that the lease deed in favour of the petitioner could be treated as cancelled in the circumstances of the present case. 4. Second contention raised on behalf of the petitioner is that the petitioner's claim regarding Sirdari right in the remaining area on the basis of adverse and continuous possession for more than statutory period has not been examined by the consolidation authorities. Third contention raised on behalf of the petitioner is that the consolidation authorities have failed to consider the evidence on record and their conclusions are patently erroneous on that score. 5. The learned counsel for the Gaon Sabha has tried to support the impugned judgments. According to him the lease in favour of the petitioner was cancelled by the Sub-Divisional Officer and no appeal or revision lay against that order, therefore, the impugned judgment of the revisional court dated 15-1-1974 does not suffer from any patent error of law and should not be interfered with in writ jurisdiction. He has emphasised that the lease in favour of the petitioner was bad in law and was rightly not accepted by the consolidation authorities. He has also advanced reasonings given in the impugned judgments for indicating that the petitioner did not file regular suit within the period of limitation, therefore, his claim was rightly negatived by the consolidation authorities. 6.
He has emphasised that the lease in favour of the petitioner was bad in law and was rightly not accepted by the consolidation authorities. He has also advanced reasonings given in the impugned judgments for indicating that the petitioner did not file regular suit within the period of limitation, therefore, his claim was rightly negatived by the consolidation authorities. 6. I have considered the contentions raised on behalf of the parties. The revisional court has not dismissed the revision petition on the ground that the order passed by the Additional Commissioner in a proceeding for cancellation of lease in favour of the petitioner was without jurisdiction. Therefore, in my opinion, the revisional court has patently erred in ignoring the lease in favour of the petitioner. From Annexure IV attached with the writ petition it is evident that the order passed by the Sub-Divisional Officer cancelling the lease in favour of the petitioner was set aside by the Additional Commissioner through his judgment dated 25-11-1983. In such a circumstance the revisional court has patently erred in treating the lease in favour of the petitioner as cancelled. Since the approach of the revisional court to the problem under consideration is patently erroneous, the impugned judgment deserves to be quashed on that ground. 7. As regards the petitioner's claim of adverse possession, since the dispute is going back to the revisional court for consideration of the petitioner's claim with regard to the land leased to him, it is proper that the petitioner may be permitted to put forward his claim based on adverse possession. 8. In the circumstances of the present case it is not necessary to deal with the contention that the consolidation authorities did not address themselves lo the oral evidence led by the petitioner. The revisional court shall decide the claim of the petitioner in the light of his pleadings and evidence on record hereafter. As regards the suggestion of the contesting opposite party that the order of the Additional Commissioner would be without jurisdiction because neither the appeal lay to him nor the revision, it would be open to the revisional court to consider that question in the light of the law and the rulings of this court as well as the Board of Revenue.
It would be necessary to mention here that at some time there was a controversy as to whether the order cancelling lease under Section 198 (2) was appealable and revisable or not but that controversy has been set at rest by the decided cases of this court as well as the Board of Revenue. Therefore, I permit the contesting opposite party Gaon Sabha to take up this point before the revisional court which shall decide the same also strictly in accordance with law. 9. In the result, the writ petition succeeds and the impugned judgment of the revisional court dated 10-10-1974 contained in Annexure III attached to the writ petition is hereby quashed. In short, I allow the writ petition but make no order as to costs. The revisional court shall decide the revision petition in the light of the observations made above.