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2012 DIGILAW 336 (ALL)

HARI DUBEY v. DEPUTY DIRECTOR OF CONSOLIDATION

2012-02-07

A.P.SAHI

body2012
JUDGMENT Hon’ble A.P. Sahi, J.—The petitioners are the sons of one Shiv Murat Dubey who is stated to have executed a sale-deed in favour of Smt. Besar Devi the respondent No. 3 in relation to the holding in dispute of Khata No. 180, Village Sohadwar, formally in district Varanasi now in district Chandauli. The sale-deed is dated 30th of March, 1974 prior to the commencement of the consolidation operations. 2. In the basic year revenue record the disputed holding was recorded as the sirdari of Shiv Murat. After the consolidation operations set in, an objection under Section 9-A(2) of the U.P. Consolidation of Holdings Act, 1953 was filed by the respondent No. 3 Besar Devi claiming that she is entitled to be recorded over the holding in question on the basis of the said sale-deed as she has purchased the entire 1/3rd share of Shiv Murat. The objection was contested by Shiv Murat himself who was then alive, denying the execution of the sale-deed and also his signature thereon. He also took an alternative plea that the sale-deed has been executed without prior permission of the Settlement Officer Consolidation as required under Section 5(c)(ii) of the 1953 Act, and thirdly that the land was recorded as sirdari over which he had no rights of transfer as such the sale-deed was void on all three counts. 3. The respondent produced the marginal witness to the sale-deed and also cross-examined Shiv Murat. The Consolidation Officer arrived at the conclusion that the parties had also been permitted to adduce expert evidence and since the report of the expert as relied on by the parties, contradicted each other, in such a situation it was difficult to conclude as to whether the sale-deed had been executed by Shiv Murat or not. 4. On the issue relating to the permission from the Settlement Officer Consolidation it was concluded that the notification published under Section 4(2) of the 1953 Act is dated 5.5.1973 and that the holding to the extent of the share owned by Shiv Murat has been disposed of, as such, it is only a part of the holding. The sale-deed is after the notification on 30.3.1974 as such the sale-deed is invalid as no prior permission was granted by the competent authority. 5. The sale-deed is after the notification on 30.3.1974 as such the sale-deed is invalid as no prior permission was granted by the competent authority. 5. On the third issue relating to the land being sirdari with no transferable rights, the Consolidation Officer concluded that no evidence was filed to establish that bhumidhari sanad had been granted and there is no entry in Register 50, as such, the land could not have been transferred. Accordingly, the objection filed by the respondent was rejected on 9.3.1981. 6. The respondent No. 3 filed an appeal against the same which was allowed on 31.1.1983 and the case was remanded back to the Consolidation Officer for a fresh decision. The remand order mentioned the discrepancies in the order of the Consolidation Officer and also observed that the provisions of Section 43 of the Transfer of Property Act had not been kept in mind, hence, the matter deserved a second look. On remand the Consolidation Officer allowed the objection filed by the respondent No. 3 on 26.4.1983. 7. Aggrieved, Shiv Murat filed an appeal which was allowed ex-parte on 20.8.1986, remanding the matter again to the Consolidation Officer to frame issues in relation to the publication of the notification under Section 4(2) of the 1953 Act. A restoration was filed before the appellate authority by the respondent which was allowed on 20.8.1986. Shiv Murat filed a revision against the same which was allowed on 16.1.1987 but at the same time the case was remanded to the Consolidation Officer for decision afresh. 8. The respondent No. 3 filed a restoration application which was also rejected, against which two revisions were filed by the respondent No. 3 Smt. Besar Devi. The revisions were dismissed on 9.6.1988, as a result whereof the order of remand to the Consolidation Officer was maintained. 9. The Consolidation Officer again decided the objections and rejected it vide order dated 9th July, 1992. The respondent No. 3 Smt. Besar Devi filed an appeal which was allowed on 19.8.1995 and the order of the Consolidation Officer was set aside. Aggrieved, the petitioners filed a revision before the Deputy Director of Consolidation which has been dismissed on 21st of July, 1999. Hence, this petition. 10. Sri Ajay Kumar Singh and Dr. The respondent No. 3 Smt. Besar Devi filed an appeal which was allowed on 19.8.1995 and the order of the Consolidation Officer was set aside. Aggrieved, the petitioners filed a revision before the Deputy Director of Consolidation which has been dismissed on 21st of July, 1999. Hence, this petition. 10. Sri Ajay Kumar Singh and Dr. Vinod Kumar Rai learned counsel for the petitioners submit that the Settlement Officer Consolidation has committed an error in reversing the order of the Consolidation Officer by observing that the sale-deed had been proved before the Consolidation officer. They contend that to the contrary the Consolidation Officer had expressed his inability to render his opinion on the same on account of contradictory expert evidence. 11. To substantiate his submission Sri Singh submits that if there was contradiction in the expert evidence and if there was no concluded finding by the Consolidation Officer then either the Settlement Officer Consolidation himself should have recorded an independent finding on the denial of the signature by Sri Shiv Murat or should have remanded the matter to the Consolidation Officer to comply with the provisions of Section 73 of the Indian Evidence Act for recording the signatures of Shiv Murat. He further submits that in view of the law laid down by this Court in the case of Smt. Rasheedan v. Amar Singh and others, 1997 RD (88) 362, where contradictory expert evidence has been adduced then resort should be taken to Section 73 of the Indian Evidence Act. He has further relied on the decisions in the cases of Kishan Chand v. Sita Ram and others, AIR 2005 P&H 156 and D. Pandi v. Dhanalakshmi Bank Ltd., AIR 2001 Mad 243 , to contend that apart from this oral evidence ought to have been taken into account if the expert evidence was being rejected. He has further invited the attention of the Court to the provisions of Section 45 and Section 67 of the Indian Evidence Act, 1972 to contend that expert evidence was relevant and if there was a contradiction, a third expert report could have been called for. He further submits that the proof of handwriting has to be established in terms of Section 67 of the Act and in such a situation, the findings recorded by the Settlement Officer Consolidation are not in accordance with law and are even otherwise erroneous on facts. He further submits that the proof of handwriting has to be established in terms of Section 67 of the Act and in such a situation, the findings recorded by the Settlement Officer Consolidation are not in accordance with law and are even otherwise erroneous on facts. He contends that the order of the Settlement Officer Consolidation being an order of reversal should have dealt with this issue in more detail as submitted hereinabove and having not done so the impugned order of the Settlement Officer Consolidation as affirmed in revision deserves to be set aside. 12. He has further submitted that the marginal witness to the sale-deed, which is said to have been proved, the same was no one else but the father of Smt. Besar Devi. He further contends that there was a rift between the two families and criminal cases had also ensued and as such there was sufficient evidence to corroborate that the marginal witness was a person interested whose deposition ought to have been disbelieved and not accepted. 13. Sri Awadhesh Kumar Singh learned counsel for the respondent No. 3 submits that the Settlement Officer Consolidation has independently assessed the evidence and has found the sale-deed to have been executed. He further contends that if the contention raised by the petitioners had to be carried any further, they ought to have filed a suit for cancellation of the sale-deed which was never done. He further submits that the bald denial of Shiv Murat is no proof of non-execution of the sale-deed. He further contends that the burden lay on Shiv Murat to establish by further positive evidence that the signature on the sale-deed did not tally with his original signatures on any other authenticated document. That having not been done, the burden was not discharged by him and as such a bald denial of having refused to sign the sale-deed is of no avail. He further contends that the conclusion drawn by the Consolidation Officer that it is difficult to give an opinion of the execution of the deed in view of the contradictory expert evidence itself is an indicator that the Consolidation Officer found it difficult to deny the execution of the sale-deed by Shiv Murat. He further contends that the conclusion drawn by the Consolidation Officer that it is difficult to give an opinion of the execution of the deed in view of the contradictory expert evidence itself is an indicator that the Consolidation Officer found it difficult to deny the execution of the sale-deed by Shiv Murat. He therefore submits that the finding of the Consolidation Officer was on mere surmises whereas the Settlement Officer Consolidation has recorded a finding on fact on the basis of the evidence adduced which clearly amounts to a reversal of the order of the Consolidation Officer on cogent grounds. He therefore submits that the petition deserves to be dismissed. 14. Having heard learned counsel for the parties, it is evident that Shiv Murat set up three alternative pleas. The first was that no permission had been taken from the Settlement Officer Consolidation prior to the execution of the sale-deed. It has been correctly recorded by the Settlement Officer Consolidation and affirmed by the Deputy Director of Consolidation that the village unit came to be notified on 26.10.1977. This was almost three years after the execution of the sale-deed. Thus there was no requirement of seeking a permission from the Settlement Officer Consolidation so long as the village unit had not been notified. Apart from this the entire share 1/3rd has been sold under the sale-deed as such no permission was required when the entire share had been sold. This finding of the appellate authority and affirmed in revision therefore could not be successfully assailed by the petitioners’ counsel. 15. The second plea taken by the petitioners was in relation to the land being sirdari over which Shiv Murat had no transferable rights. This plea was not open to Shiv Murat after the amendment in 1976 brought in the 1950 Act whereby all sirdars had become bhumidhars. The plea therefore in relation to there being no evidence on bhumidhari sanad was absolutely irrelevant and the Settlement Officer Consolidation as well as the Deputy Director of Consolidation have not committed any error in coming to that conclusion. 16. The aforesaid two pleas having been rejected, it is obvious that Shiv Murat also took a plea of denying his signature and the execution of the sale-deed. What is peculiar is that Shiv Murat never set up a case that any impostor has been set up to execute the sale-deed. 16. The aforesaid two pleas having been rejected, it is obvious that Shiv Murat also took a plea of denying his signature and the execution of the sale-deed. What is peculiar is that Shiv Murat never set up a case that any impostor has been set up to execute the sale-deed. No suit for cancellation has been admittedly filed. The marginal witness of the sale-deed had been produced and he proved the execution of the sale-deed which was registered. The Settlement Officer Consolidation took all the circumstances into account for arriving at a conclusion that the sale-deed had been executed whereas the Consolidation Officer had withdrawn himself from recording a finding only on account of contradictory expert evidence. In such a situation, the onus lay on Shiv Murat to have further established his case when the burden of proving the sale-deed had been discharged by the respondents. The Settlement Officer Consolidation, therefore, in this context has observed that the execution of the sale-deed had been established before the Consolidation Officer. There is therefore no perversity in the finding recorded by the Settlement Officer Consolidation. The judgments which have been relied on by the learned counsel for the petitioners therefore does not in any way allow this Court to take a different view on the basis of the material that was on record and on which findings have been recorded by the Settlement Officer Consolidation and affirmed by the Deputy Director of Consolidation concurrently. 17. Accordingly, I find no merit in the writ petition, the same is dismissed. ———————