Sultan Singh v. Deputy Director Consolidation, Meerut
1991-05-16
R.R.K.TRIVEDI
body1991
DigiLaw.ai
ORDER R.R.K. Trivedi, J. - This writ petition has been filed for quashing the order dated 18-10-1972 passed by Assistant Director of Consolidation, U.P. Lucknow in Revision No. 44, Beni Singh v. Sultan Singh and others and Revision No. 269, Ratna and others v. Jodha and others, under Section 48 of the U.P. Consolidation of Holdings Act. By this order, Assistant Director of Consolidation, U.P. Lucknow (Camp Meerut) determined the shares of the parties and also held that petitioner has 1 /6th share in the land in dispute. 2. The dispute between the parties in this writ petition is confined to shares in Khata No. 94 of Khatauni of 1376 to 78F of village Sukhdeopur, Pargane Dasana, Tehsil and District Ghaziabad. 3. In basic year, aforesaid Khata No. 94 was recorded in names of Jodha, Prithvi, Balwant, Sawai, Ratna, Lachchman and Palatbir. sons of Prahlad, Sultan, son of Kalli, Defedar and Benni Singh, sons of Man S ingh. Pedigree relevant for understanding the dispute between the parties is being given below which is not in dispute now : 4. Various objections were filed under Section 9 of U.P. Consolidation of Holdings Act (hereinafter referred to as the Act) claiming right and share in the land recorded in Khata No. 94. The consolidation officer struck three issues. Issue No. 3 was regarding shares of the parties Consolidation Officer by his order dated 22-8-1971 recorded a finding that it is not proved that who died first amongst Ram Sahai, Hukum and Mahtab, hence after death of Ram Sahai, the rest two branches of Hukum and Mahtab will usually inherit the share of Ram Sahai equally. On the basis of this finding Consolidation Officer determined that Defedar and Banni Singh will get jointly half share. Share of Sultan Singh petitioner was determined as th and rest of the recorded tenure-holders, namely, sons of Prahlad were to get equally in th share belonging to their father. Against this order four appeals were filed. Appeal No. 16 of Sultan Singh and Appeals Nos. 232 and 1214 were against the order of the Consolidation Officer dated 22-8-1971 while Appeal No. 214 was against the order of Consolidation Officer dated 28-10-1971. Assistant Settlement Officer of Consolidation by his order dated 1-12-1971 decided all the four appeals. Appeals No. 214 and 232 were dismissed and Appeals Nos.
Appeal No. 16 of Sultan Singh and Appeals Nos. 232 and 1214 were against the order of the Consolidation Officer dated 22-8-1971 while Appeal No. 214 was against the order of Consolidation Officer dated 28-10-1971. Assistant Settlement Officer of Consolidation by his order dated 1-12-1971 decided all the four appeals. Appeals No. 214 and 232 were dismissed and Appeals Nos. 16 and 1214 were allowed and the order of the consolidation officer dated 22-8-1971 was modified regarding shares which is only relevant for this writ petition. By this order, share of petitioner Sultan Singh was determined ?rd, shares of Banni Singh and Defedar were determined ? each and shares of Jodha, Balwant and Prithvi were deteroined 1/9 each. The Assistant Settlement Officer of Consolidation formulated points for deciding the appeals. Point No. 4 related to share of Smt. Mewa, widow of Ram Sahai; as to which branch inherited the same after death of Smt. Mewa. While deciding point No. 4 the Assistant Settlement Officer of Consolidation on basis of the entries in Khatauni of 1303 F and in 1337F.-determined that Mahtab had already died during life time of Smt. Mewa. As entered in 1303 F. Smt. Mewa with one share, Hukum Singh with one share and Man Singh with one share, were recorded as co-tenants. In Khatauni of 1337F. however, only three persons, namely Prahlad, son of Hukum Singh, Sultan Singh, son of Kalli and Man Singh, son of Mahtab were recorded. From this Khatauni of 1337F. it was clear that by that time Smt. Mewa and Hukum Singh, both haddied. The Assistant Settlement Officer of Consolidation after considering the statements of the witnesses Banni Singh. Balwant Singh and Ratan Singh recorded a finding that Hukum, grand father of the petitioner, survived Smt. Mewa. On this finding, the appeal of petitioner Sultan Singh was allowed and his share determined as ?rd. It was accepted that as at the time of death of Smt. Mewa, Hukum Singh was alive, therefore, share of Hukum Singh would be inherited only by Kalli and Prahlad on death of Hukum Singh and in this way the share of Sultan Singh was found to be ?rd in the Khata in dispute. 5. The order dated 1-12-1971 passed by the Assistant Settlement Officer of Consolidation was challenged in revision by Banni Singh and Ratna etc. as mentioned above.
5. The order dated 1-12-1971 passed by the Assistant Settlement Officer of Consolidation was challenged in revision by Banni Singh and Ratna etc. as mentioned above. The Assistant Director of Consolidation allowed Revision No. 44 filed by Banni Singh and another and dismissed the revision filed by Ratna etc. by his order dated 18-10-1972. By this order the Assistant Director of Consolidation determined the share of petitioner as ?th and share of the branch of Man Singh as and the share of the Branch of Prahlad as ?. Aggrieved by the aforesaid order dated 18-10-1972, the petitioner has filed the present writ petition. 6. I have heard Shri Sankatha Rai, learned counsel for petitioner and Shri A.D. Prabhakar, learned counsel for the respondents and perused the record. Shri Sankatha Rai has challenged the order of the Assistant Director of Consolidation mainly on the ground that as the order of the appellate authority was being reversed, it was obligatory on the respondent No. 1 to consider the findings and evidence on which basis the findings were recorded. Shri Sarikatha Rai stated that the order of the revisional court is illegal and arbitrary and without any basis as he proceeded on assumption that from the Khatauni of 1337F. it cannot be inferred that share of Smt. Mewa was inherited by petitioner, and he assumed that share was inherited only by Man Singh and Prahlad who were preferential heirs. Shri Sankatha Rai also placed reliance on the case Paras Nath v. Wajiul Hassan, reported in 1974 Unreported Revenue Cases page 615 (DB) and the case Ram Kishan v. Dy. Director of Consolidation, reported in 1974 Unreported Revenue Cases 655 (DB) for the proposition that under Section 48, Dy. Director of Consolidation being the final court, must consider the oral evidence and while reversing the findings of fact under Section 48 of the Act, it is the duty of the Dy. Director of Consolidation to consider all the facts and circumstances which were discussed by the Settlement Officer of Consolidation. If the Dy. Director of Consolidation failed to consider the evidence relied on by the Settlement Officer of Consolidation his order cannot be sustained and has to be quashed. 7.
Director of Consolidation to consider all the facts and circumstances which were discussed by the Settlement Officer of Consolidation. If the Dy. Director of Consolidation failed to consider the evidence relied on by the Settlement Officer of Consolidation his order cannot be sustained and has to be quashed. 7. Shri A.D. Prabhakar, on the other.hand, supported the order passed by respondent No. 1, and submitted that the order does not suffer from any error of law and it has been passed after considering documcwlary evidence on record. Shri Prabhakar united my attention towards the copies at the statements of Banni Singh and Sultan Singh, Annexures III and IV to the supplementary affidavit, filed by the petitioner and on the basis of these statements Shri Prabhakar submitted that both these documents have been filed by the petitioner and a perusal of these statements shows that they did not say a word about death of Smt. Oewa and Hukum Singh. 8. I have thoroughly considered the rival contentions advanced by learned counsel for the parties and in my opinion the order of the Assistant Director of Consolidation dated 18-10-1972 suffers from manifest error of law for the reason that he failed to consider the oral evidence relied on by the Assistant Settlement Officer of Consolidation for recording finding that Hukum Singh was alive and he died after Smt. Oewa. On this finding Assistant Settlement Officer of Consolidation determined shares of the parties and share of the petitioner. As the Assistant Director of Consolidation reversed the order of Assistant Settlement Officer of Consolidation so far as the determination of the shares was concerned, it was obligatory on him to consider oral evidence relied on by the Assistant Settlement Officer of Consolidation. The principles laid down by the aforesaid two Division Bench cases of this Court are squarely applicable in the present case. Contention of Shri Prabhakar based on the statements filed as Annexures IKI and IV to the supplementary affidavit cannot be accepted for two reasons. The first reason is that if there was no statement,on record as mentioned by the Assistant Settlement Officer of Consolidation in his judgment, the Assistant Director of Consolidation could very well ignore the finding on this ground.
The first reason is that if there was no statement,on record as mentioned by the Assistant Settlement Officer of Consolidation in his judgment, the Assistant Director of Consolidation could very well ignore the finding on this ground. Secondly, in the counter-affidavit filed by respondents it has-.nor been denied any where that the staterbants of Banni Singh, Balwant Singh and Ratan Singh mentioned and relied on by Assistant Settlement Officer of Consolidation were on record. The petitioner in his writ petition has assailed the order of the Assistant Director of Consolidation mainly on the ground that he has not considered the findings recorded by the Assistant Settlement Officer of Consolidation. It appears that as there were two cases before the Consolidation Officer which were decided on 22-8-1971 and 28-10-1971, the statements recorded in the case where the dispute was regarding adoption, have been inadvertently filed. So far as shares of the parties are concerned, statements of the witnesses must have been recorded in other case. The learned counsel for the petitioner realising his mistake prayed for an opportunity to file certified copies of the statements of the witnesses relied on by the Assistant Settlement Officer of Consolidation. However, as this writ petition is pending since 1973 in this Court, in my opinion, it will not be proper to delay the decision in this case further. The error in the order of the Asstt. Director of Consolidation is apparent as he failed to consider findings recorded by the Assistant Settlement Officer of Consolidation and failed to record any reason for not accepting or not considering the oral evidence relied on by the Assistant Settlement Officer of Consolidation. For this the revisional court under S. 48 of the U.P.C. H. Act is the last court on questions of law and fact and it was obligatory on the revisional court to consider the entire material on record before reversing the orders of the subordinate authorities. 9. For the reasons recorded above, the order passed by the respondent No.1 dated 18-10-1972 in Revision No. 44, Banni Singh v. Sultan Singh and others cannot be sustained and is liable to be quashed. 10. The writ petition is thus allowed. The impugned order dated 18-10-1972 passed in Revision No. 44, Banni Singh v. Sultan Singh and others, Annexure 'C' to the writ petition, is hereby quashed.
10. The writ petition is thus allowed. The impugned order dated 18-10-1972 passed in Revision No. 44, Banni Singh v. Sultan Singh and others, Annexure 'C' to the writ petition, is hereby quashed. Respondent No. 1 is directed to treat the revision as pending before him on its original number and decide the same afresh after hearing parties on merits in accordance with law. There will be no order as to costs.