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1988 DIGILAW 330 (ALL)

Judiya v. Assistant Director of Consolidation, Banda

1988-03-31

M.P.SINGH

body1988
JUDGMENT M.P. Singh, J. - The present writ petition is directed against an order passed by the Assistant Director of Consolidation, Banda, dated 31-3.1986 confirming the order of the Settlement Officer Consolidation by means of which he has remanded the case to the Consolidation Officer to decide afresh after giving full opportunity to the respondent Nos. 3 and 4. 2. The basic year entry was in favour of Bhagwan Din. The petitioner filed objections under Section 9(2) of the U.P. Consolidation of Holdings Act (hereinafter referred to as the Act) claiming to be the tenure holder on the basis of adverse possession. Another objection was filed by Smt. Rukmani, respondent no. 5, claiming herself to be the widow of Bhagwan Din. She has asserted her possession over the land in dispute. 3. During the pendency of objection before the Consolidation Officer, Smt. Rukmani executed a sale deed in favour of Zimi Pal Singh and Ajay Pal Singh, respondent Nos. 3 and 4, sons of Azgar Singh. They were impleaded as parties being the vendees of Smt. Rukmani, respondent No. 5. 4. The Consolidation Officer by his order dated 16-3-1981 allowed the objections of the petitions of the petitioners. Respondent Nos. 3 and 4 filed two appeals under Section 11 of the Act. The Settlement Officer Consolidation allowed both the appeals by his order dated 29-1-1983 and set aside the order of the Consolidation Officer dated 16-3-1981. The case was remanded to the Consolidation Officer to decide afresh on merits after giving full opportunity to the respondent nos. 3 and 4. A finding has been recorded by the appellate court that the respondent nos. 3 and 4 were not given opportunity of being heard before the order was passed by the Consolidation Officer. On revision by the petitioner this finding was upheld and the revision was dismissed by the Deputy Director of Consolidation by his order dated 31-3-1986 against which the present writ petition has been filed. 5. Heard learned counsel for the parties. 6. The only controversy in this case is whether the respondent nos. 3 and 4 were given full opportunity of being heard before the Consolidation Officer or not. Both appellate as well as revisional authority have recorded concurrent finding on this question in favour of the respondent nos. 3 and 4. In the interest of justice the case was remanded to the consolidation officer to decide afresh. 3 and 4 were given full opportunity of being heard before the Consolidation Officer or not. Both appellate as well as revisional authority have recorded concurrent finding on this question in favour of the respondent nos. 3 and 4. In the interest of justice the case was remanded to the consolidation officer to decide afresh. 7. The entire effort of the learned counsel for the petitioner was to impress upon this Court that the respondent nos. 3 and 4 have been given full opportunity before the order was passed by the Consolidation Officer. This Court has its own limitation in re-appreciating the evidence and record its own finding of fact. It has been held by the Supreme Court in the cases reported in AIR 1978 SC 9 Muni Lal & others v. Prescribed Authority & others ; AIR 1975 SC 1797 Bluibhutmal Raichand Oswal v. Laxmibai R. Tarte ; and AIR 1977 SC 388 Beant Singh v. Union of India & others that the High Court while sitting under Article 226 of the Constitution is not a court of appeal and there cannot be reappraisal of evidence. 8. In the instant case the Deputy Director of Consolidation as well as the Settlement Officer Consolidation have not decided anything on merits. Only the case has been remanded to the Consolidation Officer. Normally this Court does not interfere under Article 226 of the Constitution in case of remand. I find support from the decision of this Court reported in 1985 R.D. 163 Sheo Pujan Singh & another v. Smt. Bhagesara Kunwar. 9. The writ petition is dismissed. The Consolidation Officer is directed to dispose of the objections within three months from the date of presentation of the certified copy of this order before him.