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2007 DIGILAW 1363 (ALL)

SUMIRAN v. DEPUTY DIRECTOR OF CONSOLIDATION SIDDHARTHNAGAR

2007-05-07

S.K.SINGH

body2007
S. K. SINGH, J. Heard Sri Tribeni Shanker, and Sri Tripathi B. G. Bhai, learned advocate in support of this petition and Sri Manoj Kumar, learned advocate who appeared for the respondent. 2. Challenge in this petition is the order passed by the Deputy Director of Consolidation and the appellate authority which have been, passed in proceedings under Section 9-A (2) of UPCH Act. 3. As the facts are very small and therefore, on brief notice, this petition can be conveniently disposed off. 4. In the basic year record, name of petitioners side was recorded. Objection was filed by respondent claiming her right that she is the widow of Thakur which was denied by the petitioner and it was submitted that Thakur was unmarried and he died as such. Petitioner in support of his case examined Teemal, Ram Ajor and Sumiran. The opposite party in support of her case examined herself, Bechan and Mohan. Besides, adducing oral evidence, petitioner filed copy of revenue extract and Kutumb Register of 1960 of village Khurpahwa and another kutumb register of village Semrabankasiya. The opposite party in support of her case filed copy of Pariwar Register which was prepared under the orders of Assistant Development Officer in the year 1984. She also filed copy of voter list of 1970-73. Any other evidence, if it has been filed that may be seen from the record. The Consolidation Officer on consideration of entire evidence agreed to the petitioners submission" and thus rejected the claim/objection of opposite party against which, opposite party preferred appeal, which was allowed, upon which the petitioners came to revisional Court but could not succeed and thus, these two orders are under challenge before this Court. 5. Submission of learned Counsel for petitioner is that the judgment of appellate authority being of reversal is liable to be set aside on account of non consideration of oral evidence which was adduced from both sides and also the documentary evidence as has been referred and discussed by the Consolidation Officer. Submission is that the judgment of two authorities are totally perverse and in fact, they are vitiated on account of non consideration of vital evidence. 6. Submission is that the judgment of two authorities are totally perverse and in fact, they are vitiated on account of non consideration of vital evidence. 6. In response to the aforesaid, Sri Kumar, learned Counsel submits that although in the judgment of appellate authority and revisional authority, oral evidence has not been specifically referred and discussed as considered by the Consolidation Officer but, on these facts judgment cannot be said to be faulty and no exception can be taken as the question involved is pure question of fact. This Court need not to interfere in writ jurisdiction. 7. In view of aforesaid, this Court has examined the matter. 8. There is no dispute about the fact that petitioner was recorded in the basic year record and thus, burden to prove the case/claim lies on respondents. The Consolidation Officer has negatived the claim of respondent. The order of Consolidation Officer on its perusal shows that oral evidence of the parties have been referred. The Consolidation Officer referred to the documentary evidence also. On assessment of evidence which may be oral or documentary, conclusion may differ but the Court deciding the matter has to deal and refer both kinds of evidence and specially while writing judgment of reversal. Petitioner has taken ground that appeal was barred by time and delay in filing appeal was also not condoned. This Court is not aware that whether this objection was specifically raised or not but at the same time, this has to appear from either of the judgments. Needless to say that this Court has at limited scope of interference in the question/finding of fact but at the same time this has to appear that the findings of fact so recorded is based on entire evidences If the material evidence given by the parties have not been discussed/analysed and even referred, finding of fact so recorded can be safely said to be vitiated. Here is the case where the Consolidation Officer while writing judgment in favour of petitioner has referred oral and documentary evidence but this Court finds that the judgment of Appellate Court and the Revisional Court are completely silent in respect to oral and documentary evidence. Here is the case where the Consolidation Officer while writing judgment in favour of petitioner has referred oral and documentary evidence but this Court finds that the judgment of Appellate Court and the Revisional Court are completely silent in respect to oral and documentary evidence. Admittedly, six witnesses have been examined i. e. , three from the side of petitioner and three from the side of respondent, but surprisingly enough none of the witnesses have been named in the judgment of appellate authority and revising authority and at the same time, revising authority appears to have given over weight to the order of Assistant Development Officer in respect to preparation of Kutumb Register and that circumstances/evidence has been found to be very weighty to accept the claim of respondent. Needless to say that the order of Assistant Development Officer and preparation of Kutumb Register under his dictate may be a piece of evidence, which may favour/may not favour and that may be taken to be good piece of evidence but at the same time that cannot be claimed to be decisive so as to sway Revisional Court to accept the claim of respondent. The Revisional Court being last Court in the consolidation hierarchy is supposed to take care while deciding revision and at least while recording finding on the question of fact for simple reason that the finding of fact recorded by the Courts below is normally treated by this Court a finding of fact Having little for interference and thus as the judgments of both Courts i. e. Appellate authority and the revising authority falls short of the required consideration, this Court feels that finding of fact recorded can be safely said to be vitiated by error justifying interference by this Court. 9. At this stage, it is relevant to point out that there is objection from the side of petitioner about impleadment of vendee/purchaser from original opposite party and thus leaving this question open for being disposed of by the revisional Authority about right/status of the purchaser to participate in the proceeding, this Court has to say that revisional Court Will hear the matter on merits, in accordance with law. This Court makes it clear that all the controversies which can be legally raised from petitioners side at the time of hearing is to be taken into consideration. This Court makes it clear that all the controversies which can be legally raised from petitioners side at the time of hearing is to be taken into consideration. Thus, the Revisional Court is to decide the revision in accordance with law, after giving adequate opportunity to all parties in respect to merits of their claim and in respect to any technical objection including the question of participation impleadment, the question of limitation including compromise which is alleged said to have been filed in this Court. 10. Accordingly, this petition succeeds and is allowed. The impugned order passed by the revisional authority is hereby quashed. Revision is to revive to its original number and then after hearing all concerned matter is to be decided, preferably within a period of three months from the date of receipt of certified copy of this order. Petition allowed. .