MOHD. MUSHARRAF v. DEPUTY DIRECTOR OF CONSOLIDATION, SAHARANPUR
2010-05-05
POONAM SRIVASTAV
body2010
DigiLaw.ai
JUDGMENT Hon’ble Mrs. Poonam Srivastav, J.—The instant writ petition is filed for quashing the order dated 11.4.2001 passed by the Deputy Director of Consolidation, Saharanpur, Annexure-3 to the writ petition. 2. The petitioners and contesting respondents are related with each other and are descendants of a common ancestor Gulab. The dispute was in respect of Khata Nos. 62 and 65. In the basic year Khata No. 62 was recorded in the name of respondent Nos. 2 to 14 or their predecessors and Khata No. 65 was recorded in the name of respondent Nos. 2 to 15. Nasibuddin son of Jamaluddin is respondent No. 15 in the instant writ petition and he appears to be the main contesting party. 3. Notices were issued to respondent Nos. 3 to 19 at the initial stage. Steps were taken by the petitioners. By means of an order dated 12.3.2010 of this Court, notices issued to respondent Nos. 3 and 4 were deemed to be sufficient since the office report was that “neither acknowledgment nor undelivered cover have been received back after service”. So far respondent Nos. 2, 5 to 14 are concerned, they had refused to accept notice and, therefore, notice was deemed to be sufficient by refusal. The respondent No. 15 is represented by Sri A.K. Rai Advocate. Office report in respect of respondent No. 16 is similar to the other respondent Nos. 17, 18 and 19 since neither acknowledgment nor undelivered cover have been received back and, therefore, notice was sufficient. 4. Counter-affidavit has been filed on behalf of respondent No. 15 by Sri A.K. Rai Advocate and rejoinder affidavit is also brought on record. The writ petition is taken up in the revised list and as agreed between learned counsel for the parties, the writ petition is decided finally under the Rules of the Court. 5. In the instant writ petition, the dispute relates to only in respect of Khata No. 65. The objection filed by the parties was in respect of ancestral land claiming their shares in accordance with pedigree. Another objection was filed by Mustaqim claiming extra share on the ground that he had purchased the share of Nasibuddin. 6. A revision under Section 48 of the U.P.C.H. Act was preferred on behalf of respondent No. 15. Three revisions namely Revision No. 548, Revision No. 391 and Revision No. 1284. All the three revisions were decided together.
Another objection was filed by Mustaqim claiming extra share on the ground that he had purchased the share of Nasibuddin. 6. A revision under Section 48 of the U.P.C.H. Act was preferred on behalf of respondent No. 15. Three revisions namely Revision No. 548, Revision No. 391 and Revision No. 1284. All the three revisions were decided together. So far the claim of Nasibuddin is concerned, his sale-deed in favour of Ahmad and others was not accepted for want of evidence. His claim for 1/6th share in Khata Nos. 62 and 65 was not accepted. Moreover, the Deputy Director of Consolidation recorded a finding that since the name of Nasibuddin was never mentioned in Khata No. 62 therefore, he cannot claim any right whatsoever. The dispute in respect of Khata No. 65, the Deputy Director of Consolidation was of the view that Nasibuddin has not been given his share, though he is entitled for the same as father of Nasibuddin namely Jamaluddin is direct descendant of the common ancestor. The Consolidation Officer had given shares to all the members of the family but for respondent No. 15 and, therefore, the order of the Settlement Officer Consolidation so far declining the share in Khata No. 65 in favour of respondent No. 15 was set aside and his claim was accepted. The petitioners claimed that the revisional Court committed an error while rejecting Revision Nos. 391 and 548 for distribution of shares or determining the share of Khata No. 65 which he could not do. 7. Learned counsel on behalf of respondent No. 15 has submitted that the claim of the petitioners on the basis of alleged sale-deed in favour of the petitioners is not substantiated by any evidence. The basis of claim of the petitioners is sale-deed allegedly executed by respondent No. 15 and in absence of said sale-deed, the findings recorded against them is not tenable. 8. I have perused the impugned order and gone through the record. The pedigree set out in the order of the Consolidation Officer clearly demonstrates that Nasibuddin is the descendant of a common ancestor Gulab and he has been declined his share only on account of the reason that he has sold his share whereas there is nothing to substantiate this fact.
The pedigree set out in the order of the Consolidation Officer clearly demonstrates that Nasibuddin is the descendant of a common ancestor Gulab and he has been declined his share only on account of the reason that he has sold his share whereas there is nothing to substantiate this fact. There is no sale-deed on record, besides respondent No. 15 was recorded in the basic year alongwith other co-sharers in Khata No. 65. The argument of the learned counsel for the petitioners that the Deputy Director of Consolidation has committed an error while interfering the findings of the Court below cannot be accepted. Power of supervision is given to the Deputy Director of Consolidation under Rule 110 of U.P.C.H. Rules. Section 48 of U.P.C.H. Act read with Rule 110 of the U.P.C.H. Rules gives wide powers of supervision and superintendence to the Director of Consolidation in judicial matters as well as in the administrative matters. No doubt, the power of interference in findings of fact does not include substitution of its own findings by appreciation of evidence denovo. In the instant case, pedigree set out in the order of the Consolidation Officer is accepted by the Deputy Director of Consolidation and only reason to disentitle the respondent No. 15 of his claim is a sale-deed alleged to be executed by him which is admittedly not on record. 9. In the circumstances, I am of the view that there is no error in the impugned order apparent on the face of it, which calls for an interference in exercise of jurisdiction under Article 226 of the Constitution of India. The Deputy Director of Consolidation has not exceeded its jurisdiction but has passed the order strictly in four corners of Section 48 of the U.P.C.H. Act read with Rule 110 of U.P.C.H. Rules. There is no substantial error apparent on the face of record and, therefore, the prayer for quashing the order of the Deputy Director of Consolidation is without any substance. The writ petition lacks merit and is accordingly dismissed. ————