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2006 DIGILAW 1642 (ALL)

DHAN RAJ v. DEPUTY DIRECTOR OF CONSOLIDATION, DEORIA

2006-07-12

KRISHNA MURARI

body2006
JUDGMENT Hon’ble Krishna Murari, J.—This writ petition arises out of proceedings under Section 9A(2) of the U.P. Consolidation of Holdings Act (hereinafter referred to as the ‘’Act’). The dispute relates to Khatas No. 35 and 212 recorded in the name of the petitioners in the basic year. The pedigree of the parties as set up in the judgment of the Consolidation Authorities is as follows: Banwari Dukhi Charittar Rajla Sirtaji Moti Lachhan Jatan (Resp.No.5) (Resp.No.6) Samundar (Resp.No.4) 2. Respondents No. 4 to 6 filed an objection under Section 9A(2) of the Act alleging therein that the land in dispute was acquired by Banwari. After death of Banwari, the land in dispute was inherited by his sons Dhukhi and Charittar. Dhukhi died during the life time of Charittar and after death of Charittar his widow Smt. Rajla inherited the property. The petitioners got a farzi will executed in their favour by Smt. Rajla and Dukhi. After coming to know of farzi will Smt. Rajla made another will in their favour and since then they are in possession over the disputed land. It was also pleaded in the objection that even otherwise they being daughter’s sons of Smt. Rajla are her heirs and entitled to inherit the land in dispute. The objection filed by contesting respondents was contested by the petitioners by filing a counter objection alleging therein that Dukhi died after Charittar as such Rajla cannot be the heir of Charittar. It was also pleaded that the will was executed by Dukhi and Rajla in their favour and since Moti had died during the life time of Rajla as such the alleged will set up by the contesting respondents was forged and fabricated. It was further pleaded by the petitioners that the land in dispute was mortgaged by Smt. Rajla which was redeemed by Dhondhai, father of petitioner No. 3. It was also pleaded that Smt. Rajla executed a registered agreement dated 6.10.1932 and gave a Dastbardari to the petitioners. It was also pleaded that the contesting opposite parties filed a suit under Section 59/61, which was withdrawn, and title and possession of the petitioners were accepted by them. 3. The Consolidation Officer vide order dated 7.11.1977 rejected the objection of the opposite parties No. 4 to 6. The contesting respondents carried the matter in appeal before the Settlement Officer Consolidation, which was also dismissed on 21.1.1980. 3. The Consolidation Officer vide order dated 7.11.1977 rejected the objection of the opposite parties No. 4 to 6. The contesting respondents carried the matter in appeal before the Settlement Officer Consolidation, which was also dismissed on 21.1.1980. The contesting respondents again carried the matter in revision before the Deputy Director of Consolidation who set aside the order of the Settlement Officer Consolidation and allowed the revision. Feeling aggrieved the petitioners approached this Court. 4. I have heard learned Counsel for the parties and perused the material available on record. 5. The Consolidation Officer relying upon the death register of 1911 and 1932, which went to show that Charittar died in the year 1911 and Dukhi died in the year 1932 came to the finding that Charittar predeceased Dukhi. While coming to the said finding, he also placed reliance on the entry in khatauni of 1923 Fasli in which the name of Rajla was recorded as widow of Charittar along with Dukhi. The Consolidation Officer further found that the mortgage deeds dated 11.10.1930 and 30.11.1931 with regard to land in dispute were redeemed by Dhondhai, the ancestral of the petitioners and thereafter the whole dispute was settled by means of a registered agreement in 1932 whereby Smt. Rajla surrendered her right and possession in favour of the petitioners. Analyzing the evidence brought on record, the Consolidation Officer has recorded a categorical finding that the petitioners came in possession over the land in dispute during the lifetime of Smt. Rajla, after the mortgage was redeemed and on the basis of registered agreement executed in 1932, and their name was recorded in the revenue record. The said findings have been confirmed by the Settlement Officer Consolidation in appeal. 6. The Deputy Director of Consolidation, however, allowed the revision of the contesting respondents on the ground that the petitioners cannot acquire any right on the basis of possession as no case of possession set up by them and that the contesting respondents were the heirs of Smt. Rajla and as such were entitled to succeed. The Deputy Director of Consolidation has further committed an error apparent on the face of record in omitting to consider the effect of registered surrender deed executed by Smt. Rajla in 1932 whereby she had surrendered her right and possession in favour of the ancestors of the petitioners. The Deputy Director of Consolidation has further committed an error apparent on the face of record in omitting to consider the effect of registered surrender deed executed by Smt. Rajla in 1932 whereby she had surrendered her right and possession in favour of the ancestors of the petitioners. The Deputy Director of Consolidation has further wrongly and illegally failed to consider the effect of the continuous entry and possession of the petitioners over the land in dispute. The material evidence which formed the basis of the findings recorded by the Consolidation Officer and confirmed by the Settlement Officer Consolidation in appeal have been wrongly and illegally ignored by the Deputy Director of Consolidation. 7. It is well settled that the Deputy Director of Consolidation in exercise of his revisional power is not to disturb the findings of fact recorded concurrently by Consolidation Officer and Settlement Officer Consolidation unless he finds that the said findings are perverse, not supported by the evidence brought on record or against the weight of evidence or where the findings suffer from the vice of procedural irregularities. In the present case, no such error exists in the order of the Consolidation Officer or the Settlement Officer Consolidation. Their judgments are based on proper appraisal of evidence brought on record by the parties. On the contrary, the Deputy Director of Consolidation ignoring the material evidence on record has substituted his own findings, which is not permissible in law. The impugned judgment of the Deputy Director of Consolidation, is therefore, liable to be quashed and the writ petition deserves to be allowed. 8. The writ petition succeeds and is allowed. The judgment and order dated 9.9.1981 is hereby quashed. 9. No order as to costs. Petition Allowed. ———