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1986 DIGILAW 115 (ALL)

Mohammad Yusuf Khan v. Dy. Director of Consolidation, Sultanpur

1986-01-30

K.N.MISRA

body1986
JUDGMENT K.N. Misra, J. - This writ petition is directed against the judgment and order dated May 29, 1979 passed by the Deputy Director of Consolidation, Sultanpur by which he allowed the revision filed by opposite parties 2 and 3 and set aside the order dated March 24, 1979 passed by the Consolidation Officer, who had condoned the delay in filing the objection by the petitioners under Section 9(2) of the U.P. Consolidation of Holdings Act, for short 'the Act'. 2. Briefly stated, the facts are that the names of opposite parties 2 and 3 were recorded in the basic year Khetauni as Bhumidhars over grove plot No. 261 area 1 bigha 10 biswas situate Rukunpur, Pargana Miranpur Tahsil and District Sultanpur. Petitioners Mohd. Yusuf Khan and Mohd. Islam Khan filed objection under Section 9(2) of the Act claiming that they are grove-holders/bhumidhars of the grove in dispute and they are in possession over the same. They prayed that the names of opposite parties 2 and 3 be recorded (sic). An application under Section 5 of the Limitation Act was also filed wherein it was asserted that they resided more than 45 Kilo-meters away from village Rukunpur, District Sultanpur. They reside in village Pinari in the District of Pratapgarh. It was asserted that about the wrong entry in the revenue records petitioners came to know on November 2, 1978 and thereupon they got an objection prepared on November 3, 1978 and it was presented on 6th November, 1978. It was asserted that since they were not aware about the wrong entries in the revenue records, and, as such, they could not prefer objection under Section 9(2) of the Act earlier. This application for condonation of delay was opposed by the opposite parties 2 and 3 and they asserted that the petitioners were aware about the entries in their names in the revenue records and this objection has been filed by them at the instance of one Dost Mohammad who was condensing the case in respect of the grove in dispute and had lost upto the Court of the Deputy Director of Consolidation. 3. Before the learned Consolidation Officer parties filed documentary evidence in support of their case as regards title over the grove in dispute. Affidavits and counter-affidavits were also exchanged. 3. Before the learned Consolidation Officer parties filed documentary evidence in support of their case as regards title over the grove in dispute. Affidavits and counter-affidavits were also exchanged. The learned Consolidation Officer after taking into consideration all the facts and circumstances of the case condoned the delay in filing the objection vide order dated March 24, 1979. Aggrieved by it opposite parties 2 and 3 preferred revision which has been allowed vide order dated May 29, 1979. It has been held by the Deputy Director of Consolidation that since petitioners have asserted that they are in possession over the grove in dispute and every year they come to the village to take its fruits, and, as such, it would be presumed that they were aware with the entries in the revenue records. Learned Deputy Director of Consolidation thus held that sufficient cause has not been shown by the petitioner in seeking condonation of delay and the Consolidation Officer erred in condoning the delay in filing the objection. 4. I have heard learned counsel for the parties and perused the impugned orders very carefully. 5. Learned counsel for the petitioner urged that the petitioners admittedly reside in District Pratapgarh in a village which is 45 kilo-meters away from the grove in dispute. They were thus not aware about the consolidation proceedings as also about the wrong revenue entries in the revenue records in the names of opposite parties 2 and 3 over the grove in dispute. 6. Learned counsel further contended that the Consolidation Officer after taking into consideration all facts and circumstances of the case condoned the delay and this discretion in condoning the delay was properly exercised by the Consolidation Officer and so the order could not be interfered with by the Deputy Director of Consolidation the aforesaid erroneous ground. In reply learned counsel for the opposite party urged that the learned Deputy Director of Consolidation has given good reasons for interfering with the order passed by the Consolidation Officer and he has committed no jurisdictional error in passing the impugned order so as to call for interference by this court in exercise of power under Article 226 of the Constitution of India. His further contention was that unless sufficient cause is shown for not preferring objection within limitation, the delay infilling the objection could not be condoned merely by way of clemency or on the ground that a contentious question of fact and law is raised or is involved in the belated objection filed by the petitioner. The merits and demerits of the claim of the parties cannot be a valid ground for condoning the delay. 7. Having carefully considered the arguments advanced by the learned counsel for the parties find much substance in what has been urged by the learned counsel for the petitioners. It is well settled that the words 'sufficient cause' in Section 5 of the Limitation Act should receive liberal consideration so as to advance substantial justice, vide Deen Bandhu v. Jadumani Mangaraj, (1954 AIR (SC) 411). In subsequent decision Ram Ji Das v. Mohan Das, 1978 Rent Cases 496 (SC), the Hon'ble Supreme Court was pleased to observe that the court's discretion should be exercised for hearing and not to shut down hearing. 8. In another latest decision in Shanti Prasad Gupta v. Dy. Director of Consolidation (Camp at Meerut) and Others, 1984 RG 382, Hon'ble Supreme Court was pleased to observed : - "Whether or not there is sufficient cause for condonation of delay, is a question of fact dependent upon the facts and circumstances of a particular case, and the proposition is well settled that when order has been made under Section 5, Limitation Act by the lower court in the exercise of its discretion allowing or refusing an application to extended time, it cannot be interfered with in revision, unless the lower court has acted with material irregularity or contrary to law or has come to that conclusion on no evidence. We are aware that the powers of the Deputy Director under Section 48 of the Act are wider than those mentioned in Section 115 of the Code of the Civil Procedure. We are aware that the powers of the Deputy Director under Section 48 of the Act are wider than those mentioned in Section 115 of the Code of the Civil Procedure. Even so, the Director cannot lightly interfere with the discretion of Consolidation Officer, unless the order sought to be revised is clearly erroneous or is likely to cause gross miscarriage of justice." Thus in the aforesaid case Shanti Prasad Gupta (supra) it was held by the Hon'ble Supreme Court after taking into consideration all facts and circumstances of the case that the order of the Consolidation Officer holding that there was sufficient case for condoning the delay extended time under Section 5 Limitation Act did not suffer from irregularity or illegality, the Deputy Director of Consolidation was not justified in overturning the same in exercise of powers under Section 48 of the Act. 9. In the present case also find that the Consolidation Officer had condoned the delay after taking into consideration all facts and circumstances of the case and the order did not suffer from any material irregularity or impropriety or illegality so as to call for interference by the Deputy Director of Consolidation in exercise of powers under Section 48 of the Act. Learned Deputy Direct or of Consolidation observed that since the petitioners have themselves asserted that they were visiting the village every years in order to take fruits of the grove in question, and, as such, they were aware about the entries in revenue records. I fail to understand this reasoning. In my opinion the Deputy Director of Consolidation has taken altogether erroneous view in setting aside the order passed by the Consolidation Officer condoning the delay. The title of parties deserve to be decided on merits after taking their evidence in order to do substantial justice between the parties. 10. In the result the writ petition succeeds and is hereby allowed and the order dated May 24, 1979 passed by the Deputy Director of Consolidation, Sultanpur is quashed and the order passed by the Consolidation Officer dated March 24, 1979 is restored and the Consolidation Officer is directed to decide the objections filed by the petitioners on merits expeditiously. No order as to costs.