Ram Ashrey Prasad Singh v. Dy. Director of Consolidation, Varanasi and others
2010-09-20
VIKRAM NATH
body2010
DigiLaw.ai
Vikram Nath, J.: - Vikram Nath,J.: - Heard learned counsel for the petitioner and Sri M.N. Singh, Advocate representing the caveator respondent no.3. Learned counsel for the parties agree that the respondent nos.4 & 5 are proforma respondents. With the consent of the learned counsel for the parties, this petition is being finally heard at the stage of admission itself. 2. Objections were filed by the respondent no.3 under Section 9A(2) of the U.P. Consolidation of Holdings Act (hereinafter referred to as the Act) for expunging the name of the petitioner over the land in dispute and for recording his name on the basis of a mortgage deed dated 13.8.1959 executed by Hari Nath Singh, father of the petitioner in favour of Guru Prasad Mishra, father of the respondent no.3. The petitioner filed written statement alleging that the mortgage has been redeemed in as much as the amount of money advanced was returned and on the original deed itself an endorsement was made by Guru Prasad Mishra to that effect on 5.11.1959. Both the parties led evidence and thereafter the Consolidation Officer by order dated 16.4.2003 rejected the objections of respondent no.3. An appeal under Section 11(1) of the Act was filed which was allowed and the matter was remanded to the Consolidation Officer. Three revisions were filed against the order of the Settlement Officer, Consolidation. The Deputy Director of Consolidation clubbed all the three revisions and heard the arguments on 24.5.2008 and reserved the same for delivery of judgment fixing 7.6.2008. However judgment was not delivered on the said date and the revisions were being adjourned for different reasons. After lapse of about 1-1/2 years the respondent no.3 filed an application on 27.1.2010 praying that expert opinion be called for to match the signatures of his father on the mortgage deed and the redemption. The petitioner filed objections to the said application. The Deputy Director of Consolidation by the impugned order dated 24.7.2010 allowed the application of the respondent no.3 dated 27.1.2010 and directed for leading evidence with regard to the expert opinion. Petitioner filed an application for recalling the order dated 24.7.2010 which has been rejected by order dated 21.8.2010. It is against the aforesaid two orders passed by the Deputy Director of Consolidation that the present writ petition has been filed. 3.
Petitioner filed an application for recalling the order dated 24.7.2010 which has been rejected by order dated 21.8.2010. It is against the aforesaid two orders passed by the Deputy Director of Consolidation that the present writ petition has been filed. 3. The argument advanced on behalf of the petitioner is that the Deputy Director of Consolidation (revisional authority) had no jurisdiction to direct for leading expert evidence with regard to the documents which were already on record of the trial court i.e. the Consolidation Officer and the respondents having failed to lead such evidence at the trial stage, cannot be permitted to do so at such a belated stage as it would amount to filling up lacuna in their evidence. Further according to the learned counsel for the petitioner leading of the additional evidence at appellate or the revisional stage is prohibited in general, subject to exceptions mentioned under Order 41 Rule 27, Code of Civil Procedure. In support of his contention learned counsel for the petitioner relied upon a judgment of this court in the case of Anar Devi and another versus Deputy Director of Consolidation and others, reported in 2006 (100) RD 650. 4. On the other hand learned counsel for the respondents has submitted that the order passed by the Deputy Director of Consolidation was justified in the facts of the case and if in the interest of justice he had allowed the parties to lead additional evidence, it would be an interlocutory order and this Court may not entertain this petition in its extraordinary jurisdiction under Article 226 of the Constitution. 5. It is further submitted by the learned counsel for the respondents that the party should not suffer merely because material evidence could not be placed before the Trial Court but once the revisional court has exercised its discretion, in accepting such evidence no material irregularity has been committed. In support of his submission learned counsel for the respondents has relied upon the following two authorities- (i) Smt. Motha versus Harpal Singh and others, reported in 2007(102) RD 15. (ii) S. Saktivel (Dead) by L.Rs versus M. Venugopal Pillai and others, reported in 2000(91) SC 615. 6. Having considered the submissions advanced on behalf of the respective parties. The facts relating to the leading evidence of handwriting and finger print expert are not disputed. The document in question was already on record.
(ii) S. Saktivel (Dead) by L.Rs versus M. Venugopal Pillai and others, reported in 2000(91) SC 615. 6. Having considered the submissions advanced on behalf of the respective parties. The facts relating to the leading evidence of handwriting and finger print expert are not disputed. The document in question was already on record. No application was filed by the respondents for leading expert evidence, either at the trial stage or before the appellate court or in the revision till the time when the judgment was reserved. It is only after a lapse of 1-1/2 years after judgment was reserved that the application was filed. It could thus be safely concluded that the said application was an afterthought and an attempt to fill up the lacuna. No party can be permitted to improve his case either by way of amendment or by leading evidence at every subsequent stage. Further Order 41 Rule 27 of the Code of Civil Procedure clearly provides that no evidence would be led at the appellate stage except where parties would be able to show that the evidence relied upon was not within his knowledge earlier during the trial stage or in a case where Court was of the view that the additional evidence is necessary. In the present case both the conditions were lacking. 7. Further in the case of Anar Devi (supra) relied upon by the petitioner, the facts were identical. This Court held that document was already on record but no attempt was made to get the thumb impressions on such document verified by the expert, either before the trial court or at the appellate stage, as such the same could not be permitted in the revision before the Deputy Director of Consolidation. This Court entertained the writ petition filed by Anar Devi (supra) against the similar order of the Deputy Director permitting the other side to lead evidence. The ratio laid down in the case of Anar Devi (supra) is directly applicable in the present case. Thus, in the opinion of the Court, the order of the Deputy Director of Consolidation cannot be sustained. 8. The authorities relied upon by the learned counsel for the respondents are of no assistance.
The ratio laid down in the case of Anar Devi (supra) is directly applicable in the present case. Thus, in the opinion of the Court, the order of the Deputy Director of Consolidation cannot be sustained. 8. The authorities relied upon by the learned counsel for the respondents are of no assistance. In the case of Smt. Motha (supra) this Court was of the view that an existing report which had not been placed on the record of the trial court, on account of the fault of the lawyer, the parties should not be made to suffer. The facts of the present case are quite different, as stated above. The other case of S. Saktivel (supra) relates to altering, varying or rescinding the earlier registered document by leading a parole evidence. According to the Apex Court it could be done only by another registered document and not otherwise. This case also is on different issue. 9. In view of the discussions made above, the writ petition deserves to be allowed. Accordingly the impugned orders passed by the Deputy Director of Consolidation dated 24.7.2010 and 21.8.2010 are hereby quashed. The Deputy Director of Consolidation, Varanasi is directed to proceed to decide the revisions on their own merits, in accordance with law, expeditiously preferably within a period of four months from the date of production of certified copy of this order by either of the parties. Petition Allowed.