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2003 DIGILAW 2905 (ALL)

SUNARA v. DDC

2003-12-12

YATINDRA SINGH

body2003
YATINDRA SINGH, J. ( 1 ) THE UP Consolidation of Holdings Act 1953 has been amended many times. One of the amending Acts is UP Act no. 8 of 1963 (the amending Act ). The Act as it stood before its amendment by the amending Act is referred to as unamended Act. It provided for second appeal under section 11 (2) of the unamended Act (see below) and a revision on limited grounds under section 48 of the unamended Act (see below ). The Act as it stood after amendment by the amending act is referred to as the amended Act. The amending Act abolished second appeal but provided for revision with wider jurisdiction. A three Judge full bench of our court in Prem Chandra and another vs. DDC and others: 1966 RD 264 (the Prem Chandra case) held that a revision will lie against the decision in a second appeal filed before the commencement of the amending Act even though it was decided after commencement of the amending Act. The question involved in these writ petitions is regarding the scope of this revision: is it limited to section 48 of the unamended Act is or is as wide as section 48 of the amended Act. The Facts ( 2 ) THE dispute before the Consolidation Officer was in respect of plots of Khata no. 1052 and plot nos. 3202, 3204, 3205, 3207, 3208 and 3235 situate in village Kuddupur district Jaunpur. Now it is confined to plots of Khata no. 1052 only. Smt. Sanjafi and Smt. Sunra were recorded as sirdar in the basic year consolidation records. Smt. Sanjafi is no more and her rights are inherited by Smt. Sunra. Ram Singh and others filed an objection claiming that they were recorded as occupant in 1356 Fasli, as well as were in possession in 1359 Fasli and have become Adhivasi and thereafter Sirdar. Ram Charan filed objection claiming Sirdari rights over plot no. 2245 on the basis of possession. ( 3 ) THE Consolidation Officer by his order dated 3. 10. 1962 rejected the claim of Ram Singh and others and Ramcharan on the ground that their names were fraudulently recorded. He accepted the case of Smt. Sunara on the ground that she was recorded as sub-tenant in 1356 fasli and has become Sirdar. Ram Singh and others and Ram Charan filed appeals. 10. 1962 rejected the claim of Ram Singh and others and Ramcharan on the ground that their names were fraudulently recorded. He accepted the case of Smt. Sunara on the ground that she was recorded as sub-tenant in 1356 fasli and has become Sirdar. Ram Singh and others and Ram Charan filed appeals. In the appeal Ram Singh andothers pressed their appeal only in respect of plots of Khata no. 1052. The SOC by his order dated 12. 11. 1962 allowed the appeals on 12. 11. 1962. There was clerical error in this order and it was corrected on 5. 12. 1963. The appellate court held that Ram Singh and others and Ram Charan became Adhivasi and Sirdar of the property in dispute. Smt. Sunra filed a second appeal under section 11 (2) of the unamended Act. It was allowed on 24. 4. 1963 and the order of SOC was set aside and the order of the CO was upheld. Ram Singh and other filed revisions. It is not clear whether Ram Charan also filed a revision or not. However, all revisions were dismissed on 29. 7. 1963 on the ground that the revisions were not maintainable. Ram Singh and others filed writ petition no. 4429 of 1963 (the earlier writ petition ). This writ petition was allowed on 24th May 1968 on the basis of the Prem Chandra case and the case was remanded back. The revision was allowed on 18. 2. 1974. The revisional court held that Ram Singh and others were recorded occupants of the plots of Khata no. 1052 and have become Adhivasi and Sirdar of the same. Smt. Sunra has filed WP no. 4374 of 1974 and Ram Singh has filed WP no. 2018 of 1974. Scope of the Revision Limited ( 4 ) THE second appeal lay under section 11 (2) of the unamended Act on the question of law as well as on questions of fact. However the revisional power under section 48 of the unamended Act was limited. Section 48 of the unamended Act came to be interpreted in Sher Singh vs. JDC AIR 1978 SC 1341 (the Sher Singh case ). The Supreme Court (in paragraph 6) held that this section was in pari- materia with section 115 of the Civil Procedure Court. However the revisional power under section 48 of the unamended Act was limited. Section 48 of the unamended Act came to be interpreted in Sher Singh vs. JDC AIR 1978 SC 1341 (the Sher Singh case ). The Supreme Court (in paragraph 6) held that this section was in pari- materia with section 115 of the Civil Procedure Court. The Apex court then held (paragraphs 13 and 14) that: The position that emerges from these decisions is that S. 115 of the civil Procedure Code empowers the High Court to satisfy itself on three matters: (a) that the order of the subordinate court is within its jurisdiction; (b) that the case is one in which the court ought to have exercise jurisdiction; or (c) that in exercising the jurisdiction the court has not acted illegally, that is, in breach of some provision of law, or with material irregularity by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. And if the High Court is satisfied that there is no error in regard to any of these three matters, it has no power to interfere merely because it differs from the conclusion of the subordinate court on questions of fact or law. A distinction must be drawn between the errors committed by subordinate courts in deciding questions of law which have relation to or are concerned with, questions of jurisdiction of the said courts, and errors of law which have not such relations or connections. An erroneous decision on a question of fact or of law reached by the subordinate court, which has no relation to question of jurisdiction of that court, can not be corrected by the High Court under S 115. Applying the tests as extracted above to the facts of the instant case, we have no hesitation in holding that the Joint Director of Consolidation ignored the limitation that existed on his power under S 48 of the 1953 Act as it stood on the relevant date and illegally assumed jurisdiction which he did not possess. ( 5 ) THE finding of fact could not be interfered with under section 48 of the unamended Act. The amending Act abolished the provision of second appeal under section 11 (2) of the unamended Act and substituted a new section 48. ( 5 ) THE finding of fact could not be interfered with under section 48 of the unamended Act. The amending Act abolished the provision of second appeal under section 11 (2) of the unamended Act and substituted a new section 48. It is not disputed that the scope of section 48 of the unamended Act is much wider. The second appeal in this case was filed at a time when section 11 (2) was in existence. However, it was decided on 24. 4. 1963 after the amending Act came into force. The full bench in the Prem Chandra case held that in these circumstances a revision would be maintainable against the second appellate order. The question here is about scope of such revision. Would it be limited as in the unamended section 48 or as wide as section 48 of the amended Act. ( 6 ) THE answer to the above mentioned question is simple: the revision lay under section 48 of the unamended Act and its scope was limited. It is so said in the full bench of the Prem Chandra case. However the counsel for Ram Singh and others submitted that the revisional powers would not be limited as under in the un- amended section 48 but would be as wide as in the amended section 48 of the Act on the basis of a later five Judges full Bench decision reported in Gauri Shanker vs. Siddh Nath Teari and another: 1968 RD 426 (the Gauri Shanker Case ). ( 7 ) THE question involved in the Gauri Shanker case was whether revision or second appeal would lie in case the first appeal was decided after commencement of the amending Act. The full bench held that the revision under the amended section 48 rather than the second appeal under section 11 (2) of the unamended Act would lie. This full bench was not concerned with the scope of the revision under unameded section 48 of the Act that was held to be maintainable in view of the Prem Chandra case. This case did not modify the decision of the full bench decision in the Prem Chandra case so far as scope of such revision was concerned. ( 8 ) THE second appellate court prior to UP Act no. 8 of 1963 had jurisdiction to enter into question of law as well as question of fact. This case did not modify the decision of the full bench decision in the Prem Chandra case so far as scope of such revision was concerned. ( 8 ) THE second appellate court prior to UP Act no. 8 of 1963 had jurisdiction to enter into question of law as well as question of fact. The second appellate court has recorded a finding of fact that the entry in favour of Ram Singh and other and Ram Charan was fraudulent and was surreptitiously inserted. It is settled law that no right of adhivasi/sirdar can be conferred on the basis of surreptitious or fraudulent entries (for decisions see below ). There was no error of jurisdiction in the finding of fact recorded by the second appellate court. It could not be interfered with under unamended section 48 of the Act. The impugned judgement of the revisional court dated 29. 7. 1963 is illegal ( 9 ) THE counsels for Ram Singh and others and Ram Charan brought to my notice the order dated 24. 5. 1968 in the earlier writ petition filed by Ram Singh and others and submitted that in this case the order dated 24. 4. 1963 (which was the order of the second appellate court) was quashed. According to them, the revisional court was not interfering with finding of fact rather affirming the finding of the first appellate court. ( 10 ) THE entire judgement in the earlier writ petition is as follows:the Deputy Director has dismissed the revision under section 48 on the ground that it was not maintainable. This court has considered this question in a Full Bench case [the Prem Chandra case] holding that the revision was maintainable. The writ petition is hereby allowed in the sense that the impugned order dated 24. 4. 1963 is quashed. The revision shall now be heard and decided in accordance with law. Costs easy. ( 11 ) THE reading of the abovementioned judgement indicates that the court neither questioned the order of the second appellate court nor set it aside. It merely quashed the revisional order in the light of the Prem Chandra case, which was concerned only with the maintainability of the revision. The court in the earlier writ petition was merely following the Prem Chandra case and at the most was quashing the judgement of the revisional court and not of the second appellate court. It merely quashed the revisional order in the light of the Prem Chandra case, which was concerned only with the maintainability of the revision. The court in the earlier writ petition was merely following the Prem Chandra case and at the most was quashing the judgement of the revisional court and not of the second appellate court. It appears that in the judgement of the earlier writ petition, the date of decision of the second appellate court has been mentioned due to inadvertence in place of the date of order of the revisional court; otherwise it seems strange that the revisional (the last) order is not quashed but the second appellate (an earlier) order is quashed. ( 12 ) MY conclusions are (A) The scope of the revision to be decided in pursuance of the full bench in Prem Chandra and another vs. DDC and others: 1966 RD 264 is limited. The full bench decision in Gauri Shanker vs. Siddh Nath Teari and another: 1968 RD 426 does not decide scope of such revisions. (b) The revisional court, by its order dated 18. 2. 1974, has illegally interfered with finding of fact recorded by the second appellate court. In view of my conclusions; the writ petition no. 4374 of 1974 is allowed and writ petition no. 2018 of 1974 is dismissed. Let a copy of this order be placed in the record of WP No. 2018 of 194. .