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2014 DIGILAW 980 (ALL)

Rampal v. D. D. C.

2014-03-27

RAM SURAT RAM (MAURYA)

body2014
JUDGMENT : Ram Surat Ram (Maurya), J. Heard Sri R.C. Singh, for the petitioners and Sri M.P. Singh Gaur, for the contesting respondents. 2. The writ petition has been filed against the orders of Consolidation Officer, dated 27.06.2013 and Deputy Director of Consolidation dated 13.02.2014, passed in title proceeding under U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as 'the Act'). 3. The dispute relates to the land of khata 100 of village Rasoolabad alias Koilha, pargana Chayal, district Kaushambi, which was recorded in basic consolidation record in the name of Jokhu son of Babu. The names of Rampal, Prempal sons of Mahavir, Rajaram, Ganpat and Jagpat sons of Bhola were mutated as the heirs Jokhu in the proceedings under Section 6-A of the Act by order dated 27.12.2007. Thereafter, by the order dated 27.01.2011 passed in Case No. 921, under Section 9-A of the Act, shares of the aforesaid persons were separated. Sukhram, Bhudhram sons of Madhav and Amrit Lal son of Ram Autar (respondents-3 to 5) (hereinafter referred to as the 'respondents') filed a time barred objection (registered as Case No. 2056) under Section 9-A of the Act, claiming co-tenancy of ½ share together, on 14.12.2011. The respondents also filed an application dated 13.06.2012 for recall of the order dated 27.01.2011, which was allowed on 09.08.2012. Thereafter both the cases were consolidated together. It has been stated by the petitioners that the land in dispute was self acquired property of Jokhu. Jokhu was inherited by his two sons namely Mahavir and Bhola. Rampal and Prempal are sons of Mahavir. Rajaram, Ganpat and Jagpat are sons of Bhola. The respondents did not claimed co-tenancy in previous consolidation, as such, their right, if any, is barred under Section 49 of the Act. The respondents took the case that land in dispute was jointly acquired by Jokhu and Jakhi sons of Babu. The name of Jokhu was recorded in the representative capacity. Both the branches remained in joint possession over the property in dispute through out. The respondents belonged to the branch of Jakhi and together have ½ share. 4. Before the Consolidation Officer, apart from documentary evidence, the respondents examined Budhram son of Madho, Ram Kishun son of Shivpal, Shivpal son of Baijnath, Asharfi Lal son of Parsadi Lal, Amrit Lal son of Ram Autar. The petitioners examined Moinuddin son of Mohd. The respondents belonged to the branch of Jakhi and together have ½ share. 4. Before the Consolidation Officer, apart from documentary evidence, the respondents examined Budhram son of Madho, Ram Kishun son of Shivpal, Shivpal son of Baijnath, Asharfi Lal son of Parsadi Lal, Amrit Lal son of Ram Autar. The petitioners examined Moinuddin son of Mohd. Jakir, Prempal, Rampal and Smt. Sampat Devi as the witnesses. It may be mentioned that Prempal and Smt. Sampat Devi, in their statement admitted that land in dispute was jointly acquired by Jokhu and Jakhi sons of Babu and the respondents are through out in joint possession of the property in dispute. Rampal (petitioner-1) in his statement admitted that Jokhu and Jakhi were real brothers. The Consolidation Officer, by order dated 27.06.2013, held that Smt. Sampat Devi was mother of Rampal and was aged about 90 years at the time of her statement. There was no reason for her to give false statement. She had admitted that property in dispute was jointly acquired by Jokhu and Jakhi who were real brothers and the respondents were through out in joint possession of it. Similarly Prempal, a joint co-sharer admitted cotenancy of the respondents against his own interest. As the respondents through out remained in joint possession of the property in dispute as such bar under Section 49 of the Act will not apply. On these findings, he allowed the objection of the respondents and directed for recording their names and share of Budhram and Sukhram was held as ? each and Amrit Lal as 1/4. 5. The petitioners Rampal, Rajaram, Gnapat and jagpat filed an appeal (registered as Appeal No. 111/813/13) from the aforesaid order. The appeal was heard by Settlement Officer Consolidation, Kaushambi who by his order dated 30.10.2013 held that the Consolidation Officer did not follow the procedure under Rule 26 (2) of the Rules and without framing issues, recorded evidence of the parties. On these findings the appeal was allowed and the matter was remanded to Consolidation Officer for framing issues and giving opportunity of evidence to the parties and decide the case afresh. The respondents filed a revision (registered as Revision No. 77 /2013-14) against the aforesaid order. On these findings the appeal was allowed and the matter was remanded to Consolidation Officer for framing issues and giving opportunity of evidence to the parties and decide the case afresh. The respondents filed a revision (registered as Revision No. 77 /2013-14) against the aforesaid order. The revision was heard by Deputy Director of Consolidation, who by order dated 13.02.2014, held that before Consolidation Officer the respondents filed an application for spot inspection to show their joint possession over the land in dispute was objected by the petitioners, which shows that they were in joint possession of the land in dispute as admitted by Smt. Sampat Devi and Prempal. The Consolidation Officer after considering entire fact and evidence on record rightly allowed the objection of the respondents. Appellate court illegally remanded the matter for fresh evidence after framing the issues although both the parties had already adduced their evidence. On these findings the revision was allowed and order of Settlement Officer Consolidation was set aside and order of Consolidation Officer was reinstated. Hence, this writ petition has been filed. 6. The counsel for the petitioners argued that appellate court allowed the appeal of the petitioners on the technical ground. In case, the order of appellate court was set aside by Deputy Director of Consolidation, he ought to have remanded the case to appellate court to decide the appeal on merit, afresh, as the appellate court has not examined the merit of the case as held by Division Bench of this Court in Tirath v. JDC and others, 1985 AWC 347 (DB). In order to award co-tenancy, there must be evidence of joint acquisition by the two brother. Only for the reasons that Jokhu and Jakhi were real brothers and members of joint Hindu family, is not sufficient to give cotenancy as held by this Court in Ram Bhajan v. ADC and others, 1983 RD 202, Jagdamba Singh v. DDC and others, 1985 All.L.J. 671 and Sanehi v. DDC and others, 1985 All. L.J. 977. 7. I have considered the arguments of the counsel for the parties and examined the records. L.J. 977. 7. I have considered the arguments of the counsel for the parties and examined the records. The respondents filed objection claiming co-tenancy in the land in dispute on the ground that the land in dispute was jointly acquired by Jokhu and Jakhi who were real brothers and the respondents belonged to the branch of Jakhi and through out remained in joint possession over the land in dispute. The petitioners contested the claim of the respondents on the ground that the land in dispute was self acquired property of Jokhu and his brother had no share in it. Thus the issues between the parties were well within the knowledge of the parties and both of them adduced evidence to prove their case. The appeal of the petitioners has been illegally allowed on the ground that issues were not framed by Consolidation Officer. Supreme Court in Kali Prasad Agarwalla v. Bharat Coking Coal Ltd., AIR 1989 SC 1530 held that in issues were well within the knowledge of the parties and they led their evidence, then the decree of trial court cannot be set aside on the ground that issues were not framed. 8. So far as the arguments of the counsel for the parties that Deputy Director of Consolidation ought to have remanded the case to appellate court for deciding the appeal on merit as the appeal was decided on technical ground without examining merit of the case, is concerned. Supreme Court in Ashwinkumar K Patel v. Upendra J Patel, AIR 1999 SC 1125 : 618 SC and Gangadharan v. Janardhana Mallan, (1996) 9 SCC 53 : 1996(1) ACJ 388 SC held that when the materials were available before the High Court it should have decided the appeal in one way or other as remanding the case would cause unnecessary delay and uncertainty. In Jadu Gopal Chakravarty v. Pannalal Bhowmick, (1978) 3 SCC 215 , it was held that when first two courts did not pointedly address themselves to the question as to whether the leave to compromise the case was obtained by perpetrating fraud on the High Court. In the present litigation, therefore, the High Court was entitled in exercise of its powers under Section 103 of the Code of Civil Procedure , to go into that question. In the present litigation, therefore, the High Court was entitled in exercise of its powers under Section 103 of the Code of Civil Procedure , to go into that question. The High Court was therefore right in holding that there was no evidence to show that the compromise decree in question was obtained by fraud. In Leela Soni v. Rajesh Goyal, AIR 2001 SC 3601 , held that section 103 CPC authorises the High Court to determine any issue which is necessary for the disposal of the second appeal provided the evidence on record, is sufficient, in any of the following two situations: (i) when that issue has not been determined both by the trial court as well as the lower appellate court or by the lower appellate court; or (ii) when both the trial court as well as the appellate court or the lower appellate court have wrongly determined any issue on a substantial question of law which can properly be the subject-matter of second appeal under Section 100 CPC. 9. Section 48 Explanation (3) of the Act empowers Deputy Director of Consolidation to decide issue relating to fact also. As entire evidence of the parties were available on record, Deputy Director of Consolidation rightly decided the case on merit instead of remanding the case to the appellate court. In view of Supreme Court decision, case law of Tirath v. DDC 1985 AWC 347 is not liable to be followed. Supreme Court in Ramakant Singh v. DDC and other, AIR 1975 All 126 (FB) held that once the record has been summoned, Deputy Director of Consolidation has every jurisdiction to examine legality and propriety of the orders of subordinate authorities. 10. So far as the merit of the case is concerned, Smt. Sampat Devi and Prempal (mother and brother of petitioner-1) admitted that land in dispute was jointly acquired by Jokhu and Jakhi and both the branches were in joint possession of it through out. Smt. Sampat Devi is the oldest witness of the family, her testimony is very relevant and reliable. Two consolidation authorities based their findings on the oral statement of the parties. As such, joint acquisition by two brothers Jokhu and Jakhi was proved. Findings of fact recorded by two consolidation authorities on appreciation of evidence on record cannot be interfered by this Court. 11. Two consolidation authorities based their findings on the oral statement of the parties. As such, joint acquisition by two brothers Jokhu and Jakhi was proved. Findings of fact recorded by two consolidation authorities on appreciation of evidence on record cannot be interfered by this Court. 11. In view of the aforesaid discussions, the writ petition has no merit and is dismissed.