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2008 DIGILAW 490 (ALL)

KRISHNA KUMAR v. DEPUTY DIRECTOR OF CONSOLIDATION GYANPUR VARANASI AND

2008-02-29

S.K.SINGH

body2008
S. K. SINGH, J. This petition is listed under the heading hearing and that relates to the year 1980. 2. Earlier, a counter affidavit was filed by learned Advocate of this Court who, is now no more, upon which, notices were directed to be sent to the respondent and in view of office report dated 29. 1. 2008, notices meant for the respondents has been treated to have been served by the order of this Court dated 6. 2. 2008. No body has appeared for the respondent. 3. Before noticing arguments, notice of facts in brief, will endure this Court to decide the writ petition in a comfortable manner. Basic year record, records the name of respondents and objection was filed by the petitioner through his mother who is said to be the next friend claiming rights on the ground that the land in dispute was acquired by the petitioners grand father Rama Nand by means of registered sale deed dated 2. 1. 1937 and on the basis of sale deed, name was also recorded in 1346 Fasli. It is thereafter, name of school/respondent came to be recorded in the record, without any valid order and thus on start of consolidation, expunction of the name of respondent was sought. Petitioner in support of his case examined Gauri Shanker, Kali Charan and Raj Karan. Documentary evidence in the shape of registered sale deed, Khatauni extract of 1346 Fasli was filed. Respondent in support of his case examined Mahabali, Shobh Nath, Rama Shaker and Bansh Bahadur. Register of Lekhpal dated 24. 8. 1940 showing entry about an order of the Collector directing for the entry in the name of school was filed. Consolidation Officer, on consideration of oral and documentary evidence adduced from both sides, allowed petitioners objection and directed for expunction of the basic year entry. Appeal was filed by respondent which was allowed. Thereafter, on behalf of petitioner, revision is said to have been filed by one Bhola Nath Srivas-tava and Shivdhari Singh, Advocate. Although, in the revision notices were not issued, an application came to be filed on behalf of petitioner by Shivdhari Singh, Advocate only stating that revision be dismissed as not pressed. Acting upon that application, Deputy Director, Consolidation dismissed the revision as not pressed. Although, in the revision notices were not issued, an application came to be filed on behalf of petitioner by Shivdhari Singh, Advocate only stating that revision be dismissed as not pressed. Acting upon that application, Deputy Director, Consolidation dismissed the revision as not pressed. Petitioner claims to have no knowledge of the order and on attaining majority as and when petitioner came to know about that order, a recall application was filed which was supported by an affidavit. The Deputy Director, Consolidation rejected petitioners application. Thus, to challenge both orders of the Deputy Director, Consolidation i. e. dismissing the revision as not pressed and dismissing recall application, this petition is before this Court. 4. Submission of learned Counsel for the petitioner is that Shivdhari Singh, Advocate was never instructed for getting the revision dismissed as not pressed and there was no occasion for the same. It is pointed out that petitioner was minor, his mother happened to be pardanasheen lady and therefore, Sri Singh, having been influenced by respondents side moved that application his own and got the revision dismissed as not pressed. Submission is that there was no occasion for the revisionist to get the revision dismissed as not pressed as judgment of the Consolidation Officer which happened to be in petitioners favour contains very good findings on merits and there being every hope of success, getting the revision dismissed as not pressed was quite strange and something unusual. Submission is that there was affidavit from the side of petitioner disowning alleged action of Shivdhari Singh, Advocate to which there was no counter affidavit and therefore, Deputy Director, Consolidation in rejecting petitioners application has committed manifest error and that has resulted into serious prejudice to petitioners interest. 5. Besides aforesaid, submission is that on merits, petitioner has unanswerable case inasmuch as name of petitioners grand father was recorded in 1346 Fasli, on the basis of registered sale deed dated 2. 1. 5. Besides aforesaid, submission is that on merits, petitioner has unanswerable case inasmuch as name of petitioners grand father was recorded in 1346 Fasli, on the basis of registered sale deed dated 2. 1. 1937 and on record, there was no document to establish the acquisition of land in accordance with law or otherwise petitioners grand father had given the land to the school and thus, judgment of appellate authority which was of reversal was to be set aside by the Deputy Director, Consolidation and therefore, there being no decision by the Deputy Director, Consolidation on merits, on the facts, petitioner is entitled for a direction from the Revisional Court to revive the revision for its decision oil merits in accordance with law after opportunity to both sides. 6. In view of aforesaid submission, this Court has to deal both aspects. 7. So far as first aspect is concerned, there is no dispute about the fact that at relevant point of time, petitioner was minor. His mother is claimed to be par-danasheen lady. Revision was admittedly filed by two Advocates i. e. Bhola Nath and Shivdhari Singh. An affidavit was filed in support of recall application that Shivdhari Singh was never instructed to get the revision dismissed as not pressed and there could not be any occasion for this. Claim is that as and when petitioner became major, on coming to know, recall application was filed. On these facts, getting the revision dismissed as not pressed on filing application by Shivdhari Singh, certainly appears to be slightly unusual. No reason has been given in the application for dismissing of the revision and it is just said that compromise has been entered into between the parties. From that application it is not clear that what was the consideration, for which alleged consensus between the parties came into existence. Thus, it is clear that dismissal of revision without appearance of even respondents side, on the move of Shivdhari Singh, Advocate appears to be his personal and interested/motivated action as has been stated in the affidavit to which, there was no counter affidavit from the side of respondents. As the dispute was about title and one Court favoured petitioner by assigning cogent reason, it was for the Deputy Director, Consolidation to have permitted the revival of revision for being decided on merits by allowing recall application. As the dispute was about title and one Court favoured petitioner by assigning cogent reason, it was for the Deputy Director, Consolidation to have permitted the revival of revision for being decided on merits by allowing recall application. Thus, this Court is of the view that by rejection of petitioners application, petitioner has suffered serious prejudice which needs to be rectified by this Court. 8. So far as second aspect is concerned, although this Court is not to comment at length, as there is no decision by the Deputy Director, Consolidation on the merits but at the same time, as Shri Mishra read the judgment of the Consolidation and Settlement Officer, and attaked the findings of appellate authority on merits, in the light of findings so given by the Consolidation Officer, this Court will have to say something although by making an observation that when the matter is to be decided by Deputy Director, Consolidation, he will have to apply his independent discretion and analysis on merits without being influenced by observation, if it has come in the judgment of this Court. 9. Claim of petitioner is on the basis of registered sale deed. There was entry in the name of petitioners father which disappeared in subsequent revenue record. In respect to respondents, there happens to be just a Lekhpal register dated 24. 8. 1940 which has a reference of the order of Collector that the name of school be recorded. Consolidation Officer has given a clear finding that Lekhpal register do not bear signature of any official. There is no seal. There is no page, number etc. Appellate Authority has not commented any thing on the register of Lekhpal but on the basis of Lekhpal register, it was observed that as that is there and there is an entry in the name of school, pursuant to that entry, it will be assumed that land was acquired and was given to school. Prima facie this approach can be very risky thus care is to be taken by the Deputy Director, Consolidation on merits. Deputy Director, Consolidation is to assign reason for accepting merits/de-merits, of the claim of the parties. 10. Prima facie this approach can be very risky thus care is to be taken by the Deputy Director, Consolidation on merits. Deputy Director, Consolidation is to assign reason for accepting merits/de-merits, of the claim of the parties. 10. As on the first score, this Court is satisfied that revival of revision for its decision on merits can be said to be in the ends of justice, this Court has to simply remit the matter to the Revisional Court for fresh decision on merits. 11. Thus, this Court is not to write any more and proposes to give direction to the Revisional Court to revive the revision for fresh decision, in accordance with law. 12. For the reasons recorded above, this petition succeeds and is allowed. Judgment of the Deputy Director, Consolidation dismissing the revision as not pressed and dismissing restoration application are hereby quashed. Now revision is to be revived and after sending notices to respondents side after giving adequate opportunity, revision is to be decided afresh on merits, preferably within a period of four months from the date of presentation of certified copy of this order which petitioner undertakes to file before the re-visional authority within three weeks from today. Petition Allowed. .