Research › Search › Judgment

Allahabad High Court · body

2010 DIGILAW 2745 (ALL)

Kalika Rai v. D. D. C. and others

2010-09-08

VIKRAM NATH

body2010
Vikram Nath, J.: - Heard Sri Bhola Nath Yadav, learned Counsel for the peti­tioner. Sri Vishnu Kumar Singh, Advocate on behalf of respondents has placed before the Court copy of the order dated 25.8.2009 passed in Writ Petition No. 759 of 1976 further a copy of the order dated 27.10.2009 and 13.11.2009 passed in the present writ petition. Sri Vishnu Kumar Singh has prayed for adjournment of this case in or­der to enable him to file application for recalling the order dated 13.11.2009. 2. This writ petition is of the year 1975. Learned Counsel for the respondents had knowledge of the order dated 25.8.2009 and the other orders in the year 2009 itself as is apparent from the date of the issuance of the certified copy. It has been stated by Sri Vishnu Kumar Singh that a registered letter was sent to his client from his office but his client has not re­sponded and as such some further time be allowed. I am not inclined to grant any time in view of the facts stated above. 3. The facts, as placed by the learned Counsel for the petitioner are that the land in suit was recorded in the name of Surajbali Rai. He had adopted Kalika Rai, the petitioner by means of Adoption Deed dated 11.6.1962, which is said to have been registered on 1.8.1962. One Smt. Pauhari, respondent No. 2 claiming to be the daughter of Surajbali Rai instituted a suit for cancellation of the Adoption Deed dated 11.6.1962, before the Civil Court. The Trial Court decreed the suit for cancellation of the adoption deed vide judgment dated 10.4.1964. Against the same Civil Appeal No. 311/64 was filed by the petitioner, which was allowed by the II-Additional Civil Judge, Azamgarh vide judgment dated 27.10.1965 and the suit of Smt. Pauhari was dismissed. The Second Appeal No. 884 of 1966 filed by Smt. Pauhari is said to have been dismissed by this Court vide judgment dated 9.8.1974. 4. It has been submitted by Sri Bhola Nath Yadav, learned Counsel for the peti­tioner that the findings recorded by the Appellate Court was to the effect that firstly Kalika Rai was the adopted son of Surajbali Rai, the Adoption Deed had been validly executed and lastly that Smt. Pau­hari was not the daughter of Surajbali Rai. 5. In the meantime Consolidation operations intervened. 5. In the meantime Consolidation operations intervened. The petitioner filed objections for getting his name recorded in place of Surajbali Rai. The objections were allowed by the Consolidation Officer by order dated 30.11.1972. The appeal filed by Smt. Pauhari was dismissed by the Settle­ment Officer, Consolidation by order dated 26.5.1973. However the revision filed by Smt. Pauhari was allowed by the Deputy Director of Consolidation vide judgment dated 27.9.1975 and after setting aside the orders of the Consolidation Officer and the Settlement Officer, Consolidation it was directed that the name of Smt. Pauhari be recorded as sole heir of Surajbali Rai. Be­fore the Deputy Director of Consolidation, the fact that the Second Appeal of Smt. Pauhari had already been dismissed on 9.8.1974 had not been placed and it had been argued that the Second Appeal was still pending before the High Court and as such the matter relating to cancellation of Adoption Deed was still subjudice. The Deputy Director of Consolidation ignoring the findings of Civil Court proceeded to record a finding contrary to the finding of the Civil Court. He held that Smt. Pauhari was the sole daughter and heir of Surajbali Rai and the adoption had not been duly proved by Kalika Rai. It is against the said order dated 27.9.1975 that the present writ petition was filed. It was dismissed in limine by order dated 30.10.1975. 6. In the meantime when the peti­tioner learnt about the fact that the second appeal of Smt. Pauhari had already been dismissed by the High Court on 9.8.1974 prior to the order of the Deputy Director of Consolidation and that too on merits, and further that the issues decided by the Civil Court stood completely settled, he applied for review before the Deputy Director of Consolidation. 7. The review application was dis­missed by the Deputy Director of Consoli­dation against which Writ Petition No. 759 of 1976 was filed by the petitioner. When the said petition came up for hearing on 25.8.2009, the Court permitted the peti­tioner to withdraw the said writ petition with liberty to file appropriate application in the present writ petition apparently for recall of the order dated 30.10.1975. When the said petition came up for hearing on 25.8.2009, the Court permitted the peti­tioner to withdraw the said writ petition with liberty to file appropriate application in the present writ petition apparently for recall of the order dated 30.10.1975. Pursu­ant thereto an application was filed by the petitioner in the present writ petition for recalling the order dated 30.10.1975 and further another application was filed seek­ing amendment, in order to bring on record primarily the judgment of this Court passed in the Second Appeal. Both the applications had been allowed. The re­call/review application was allowed by order dated 13.11.2009 and the writ petition was restored to its original number. Further the amendment application had already been allowed and the amendment had been duly incorporated. 8. It is these orders which have been placed on record by Sri Vishnu Kumar Singh, Advocate at the outset which have already been noticed above. The fact re­mains that the order dated 13.11.2009 hav­ing not been assailed as yet and no recall application having been filed till date, the petition stands restored and is liable to be heard on merits. 9. The argument advanced on behalf of the petitioner is that once the Adoption Deed had been held to be valid by the Civil Court as the suit for cancellation having been dismissed up to the High Court and in that suit finding having been recorded that the petitioner was the validly adopted son of Surajbali Rai and that Smt. Pauhari was not the daughter of Surajbali Rai and such proceedings having attained finality up to the High Court, it was not open to the Con­solidation Courts to have ignored the Adoption Deed. The finding recorded by the Civil Court would operate as res-judicata and the decree of the Civil Court, holding the Adoption Deed valid could not have been interfered with. The consolida­tion Courts were bound by the judgment of the Civil Court. 10. In the opinion of the Court, final­ity having been attained up to the. High Court, the Deputy Director of Consolida­tion committed error apparent on the face of record by recording contrary findings which were not open to him. The petition deserves to be allowed. The impugned or­der of the Deputy Director of Consolidation dated 27.9.1975 is hereby quashed and the judgment and order passed by the Con­solidation Officer and the Settlement Offi­cer Consolidation are maintained. The rec­ords be corrected. The petition deserves to be allowed. The impugned or­der of the Deputy Director of Consolidation dated 27.9.1975 is hereby quashed and the judgment and order passed by the Con­solidation Officer and the Settlement Offi­cer Consolidation are maintained. The rec­ords be corrected. 11. Petition is accordingly allowed. There shall, however, be no order as to costs. Petition Allowed.