Research › Browse › Judgment

Allahabad High Court · body

1989 DIGILAW 336 (ALL)

Ram Adhar v. Deputy Director of Consolidation, Sultanpur

1989-04-07

B.L.LOOMBA

body1989
ORDER B.L. Loomba, J. - Ram Adhar filed this writ petition under Article 226 of the Constitution of India to have quashed the order passed by the Settlement 'Officer (Consolidation) Sultanpur dated 14-8-1978, in appeal No. 1146, under S. 11(1), of U.P. Consolidation of Holdings Act, as also the order of the Deputy Director of Consolidation dated 17-12-1979, passed under S. 48 of the said Act. 2. I have heard learned counsel for the petitioner. The dispute relates to three plots Nos. 175, 352 and 330. These plots were recorded in the basic year in the name of respondent Rangy Swaroop. (since dead). 3. The petitioner filed an objection under S. 9 of U.P. Consolidation of Holdings Act on 8-11-1969 claiming that on the basis of long possession he has become Sirdar thereof. During the course of proceedings an amendment application was moved with a view to incorporate an alternate ground that the disputed plots were acquired by the common ancestors of the parties and that the same as a result of private partition fell in his share and on that basis also he became Sir dar thereof. This amendment application was rejected by the Consolidation Officer and the objections of the petitioner were rejected. The appeal against the order of the Consolidation Officer was dismissed. The order was confirmed in revision by the Deputy Director of Consolidation. The petitioner filed Writ Petition No. 225 of 1972 at Allahabad which was decided by judgment and order dated 19-9-1974. A perusal of this judgment indicates that the writ petition was allowed mainly on the ground that the amendment sought by the petitioner ought to have been allowed and the consolidation authorities committed manifest error of law in not allowing the amendment. The orders of the consolidation authorities were quashed and the case was sent back to the consolidation officer for decision afresh after allowing the application for amendment. After the remand the matter was considered afresh by the Consolidation Officer and by his order dated 3-2-1978 objection of the petitioner was allowed and it was directed that the petitioner was entitled to half share in khata Nos. 213 and 221. A perusal of this judgment would show that the pedigree set up by the petitioner was accepted. After the remand the matter was considered afresh by the Consolidation Officer and by his order dated 3-2-1978 objection of the petitioner was allowed and it was directed that the petitioner was entitled to half share in khata Nos. 213 and 221. A perusal of this judgment would show that the pedigree set up by the petitioner was accepted. Statement of Shobhanath who was examined on behalf of the respondent was rejected mainly on the ground that he was suppressing the truth as regards a part (of) the pedigree set up by the petitioner and that the evidence on record established the possession of petitioner Ram Adhar on plot Nos. 175, 352 and 330. It was also mentioned that since this land was acquired from the time of the ancestors of the parties it would as such be taken to be joint holding of the parties. 4. The appeal filed by Shobhnath and others was allowed by the impugned order dated 14-8-1978 which is a detailed judgment wherein the evidence of the parties both, documentary and oral, has been discussed in details. It was mentioned that the various khaters of the parties were recorded separately. This was the admitted position the basis of evidence that a family partition had taken place about 25-30 years earlier and the parties were living separately in different houses. Reference was made to a Civil Suit No. 14 of 1985 between the parties in which petitioner Ram Adhar had claimed exclusive rights in respect of Gate Nos. 174 and 182 and his claim was accepted. The appeal against this order was dismissed. It was mentioned that the plots in question were given in the exclusive share of the petitioner he would have also claimed rights in the same litigation or in any subsequent suit in respect of these plots. Upon consideration of the evidence the learned settlement officer (consolidation) came to the conclusion that the petitioner had failed to establish the basis of his rights in respect of the plots in question and the mere entry in Category-IX in Part II of the Khatauni for some years was inconsequential and could not be accepted as the basis of the rights claimed by the petitioner. 5. The revisional Court also considered all the aspects in good details. 5. The revisional Court also considered all the aspects in good details. It came to the conclusion that the name of the respondent was recorded in respect of these plots from the time of Second settlement and had these plots been acquired by the ancestors of the parties or were placed exclusively in the share of the petitioner the entries in the revenue record would have been made in his favour. The revision was accordingly dismissed 6. According to the writ petition the petitioner claimed rights in respect of five plots in khatas Nos. 213 and 221 but as per the statement of learned counsel for the petitioner dated 12-2-1980 the dispute was confined to plot Nos. 175, 352 and 330 only. The challenge to the validity of the impugned order raised by the learned counsel for the petitioner is mainly on the ground that the settlement officer (consolidation) as also the Deputy Director of Consolidation failed to consider the documentary and oral evidence on record which clearly established the long possession of the petitioner in respect of the disputed plots. It is also submitted that there is clear and cogent evidence on record to show that the land in question was acquired from the time of common ancestors of the parties and in any case the petitioner was entitled to half share in these plots. 7. It has to be noticed that the petitioner had taken three stands in support of his claim on the disputed plots. In the objection under S. 9 of the Act the rights were claimed on the basis of long possession without disclosing how he got into the possession thereof. What would appear from the judgment in the earlier W.P. No. 225 of 1972 is that the rights were claimed on the basis of adverse possession. Through amendment application the case set up was that the disputed plots were acquired by the common ancestors of the parties and as a result of private partition these plots exclusive by (exclusively) came to the share of the ancestor of the petitioner. Subsequently, however, the petitioner gave up his claim of exclusive right and raised the plea that he was entitled to half share in these plots. Subsequently, however, the petitioner gave up his claim of exclusive right and raised the plea that he was entitled to half share in these plots. Without going into the question whether it is open to raise such alternate and in a way self contradictory basis of claim it has inescapably to be taken that the petitioner was not sure of the basis of his claim and at different stages of litigation to come forward with different basis of claim. This is a feature unhelpful to the petitioner and in a way weakens his case. 8. Learned counsel for the petitioner submits that pedigree set up by the petitioner before the consolidation authorities had been amply proved and that the name of the petitioner was recorded in revenue record in Col. II in category-IX. It is submitted that his possession was clearly proved in these plots and that was enough to show his rights as otherwise there was no question of his name being recorded as occupant. It is true that the petitioner's name was recorded for some years against these plots in Col. 11 of the Khatauni. This by itself, however, cannot be conclusive or sufficient to establish the claim that the plots in question were acquired by common ancestors of the parties and in the family partition they came in the share of the petitioner or that they continued to be the joint holding of the parties. It appears. no valid explanation could be put forward before the consolidation authorities as to why the name of the petitioner or his immediate ancestors was not recorded in the revenue record as exclusive tenure holder or co-tenure holder against these plots and why his name came to be recorded only in Col. II, Category-IX in the year 1960 only. The basis of the claim of possession could also not be disclosed. The learned counsel for the petitioner could not explain this aspect even before this Court. The fact remains that the Settlement Officer (Consolidation) while deciding the appeal had considered the evidence relating to the entry in favour of the petitioner against these plots in Col. II of thel khatauni in Category-IX. The oral evidence led in support of the claim of possession was also taken into account but was rejected. Statements of Ram Adhar and Kali Prasad who appeared on behalf of the petitioner were duly considered. II of thel khatauni in Category-IX. The oral evidence led in support of the claim of possession was also taken into account but was rejected. Statements of Ram Adhar and Kali Prasad who appeared on behalf of the petitioner were duly considered. It was mentioned that the petitioner's witnesses could not even say as to which were disputed plots in the litigation. The fact that there was family partition between the parties about 25-30 years earlier was taken into account and it was mentioned that there was no reason why claim in respect of the disputed plots was not raised when the name of the petitioner was not recorded as exclusive tenure holder or cotenure holder in the revenue record more, particularly, when such a claim was raised in respect of some other plots. It will, thus, he not correct to say that the learned appellate Court did not consider the documentary or oral evidence on record in support of the claim of rights or possession over the disputed plots. Revisional Court also duly considered the controversy between the parties with reference to the evidence on record and it is not a case where the appellate or revisional authority failed to consider the evidence or recorded the findings on any inadmissible evidence. There appears nothing to show that the impugned orders suffer from any manifest error of law or fact. In Syed Yakoob v. K. S. Radhakrishnan, AIR 1964 SC 477 the question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Article 226 of the Constitution was considered. It was held that the Court exercising supervisory jurisdiction under Article 226 of the Constitution is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as a result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to he. It was also observed that a finding off act recorded by a Tribunal cannot be challenged in writ on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned order. 9. It was also observed that a finding off act recorded by a Tribunal cannot be challenged in writ on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned order. 9. Present is not a case in which the decision of the Settlement Officer (Consolidation) or that of Deputy Director of Consolidation passed in revisional jurisdiction can be said to be suffering from any legal infirmity apparent on the face of record. The evidence of the parties was, it appears, duly considered and good reasons have been given for arriving at the conclusion recorded in the matter. Learned counsel for the petitioner has failed to show that the orders under challenge suffer from any legal infirmity warranting interference by this Court under Article 226 of the Constitution. 10. The writ petition lacks merit and is liable to be dismissed and is accordingly dismissed. No order as to costs.