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2016 DIGILAW 909 (ALL)

Samana v. D. D. C.

2016-03-10

ANJANI KUMAR MISHRA

body2016
JUDGMENT Anjani Kumar Mishra, J. – Heard Sri R.C. Singh, learned counsel for the petitioner and Sri Arun Kumar, learned counsel for the respondent no.3. 2. This writ petition has been filed challenging an order dated 21.01.2016 passed by the Deputy Director of Consolidation, Allahabad. 3. The facts of the case briefly stated are that the dispute herein relates to the land of Khata Nos. 80 and 66 situated in village Mendara, pargana Nawabganj, Tehsil Soraon, District Allahabad which was admittedly recorded in the name of one Ram Saran. It appears that upon the death of Ram Saran, the land was ordered to be recorded in the name of Smt. Samana Devi, his widow. The orders regarding the two khatas were passed on 20.12.1988 and 24.12.1988, respectively. 4. It appears that an application for correction under Section 42-A of the U.P. Consolidation of Holdings Act was filed on 31.10.1992 alleging that Smt. Samana Devi was not the widow of Ram Saran and was, in fact, his daughter. 5. The Consolidation Officer by his order dated 05.11.1992 allowed the correction application. Thereafter, Smt. Samana Devi daughter of Ram Saran executed a registered sale deed on 30.11.1992 in favour of Smt. Gujrati wife of Ram Kishor, respondent no.3. The respondent no.3 applied for mutation under Section 12 of the U.P. Consolidation of Holdings Act. 6. The petitioner filed a restoration application on 15.01.1993 seeking recall of the order dated 05.11.1992. She also filed an objection to the mutation application. Her case was as she was the widow of Ram Saran and from their union, a daughter,? namely Sudama Devi was born. Samna, the alleged daughter of Ram Saran is an imposter and that the correction application was wrongly and fraudulently filed and an ex parte order was obtained thereon. 7. The Consolidation Officer consolidated both the cases namely the restoration application of the petitioner as also the mutation application filed by the respondent no.3 and by a composite order dated 18.09.2003 dismissed the restoration application and ordered that the respondent no.3 be recorded over the land in question. 8. Aggrieved by this order, the petitioner preferred an appeal which was allowed vide order dated 04.12.2009 and the matter was remanded back to the Consolidation Officer to decide the matter afresh after framing proper issues and after affording the parties, opportunity of adducing evidence. 9. 8. Aggrieved by this order, the petitioner preferred an appeal which was allowed vide order dated 04.12.2009 and the matter was remanded back to the Consolidation Officer to decide the matter afresh after framing proper issues and after affording the parties, opportunity of adducing evidence. 9. The respondent no.3 preferred a revision against this order of remand. This revision has been allowed by the impugned order dated 21.01.2016, the order passed by the Settlement Officer Consolidation had been set aside and that of the Consolidation Officer affirmed. 10. The contention of the learned counsel for the petitioner is that the order passed by the Consolidation Officer was an ex parte order. A categorical finding in this regard, returned by the Settlement Officer Consolidation, was not reversed by the Deputy Director of Consolidation in his judgment of reversal. The matter have been remanded by the Settlement Officer Consolidation and this order of remand was an interlocutory order, against which no revision lay, yet the Deputy Director of Consolidation not only entertained the revision, but has wrongly and illegally allowed the same. 11. The next contention is that the mutation order passed by the Consolidation Officer, whereby the petitioner were mutated over the land recorded in the name of Ram Saran, as his widow, was never challenged and the same could not have been corrected, by means of an application under Section 42-A of the Act. 12. It is further contended that the case of the petitioner has not been considered by the Courts below. The primary question to be decided was that as to who was the real Samana Devi and also as to whether she was the widow or the daughter of Ram Saran. None of these issues have been decided by the Courts below. Besides these questions are intricate questions of fact but the Courts below have decided them cursorily. In view of the complexity of the question involved, the Deputy Director of Consolidation should not have interfered with the order of remand. 13. It is lastly submitted that the documentary evidence filed by the petitioner namely domicile certificate, her physical disability certificate, ration card etc. remained un-controverted but the same has not been considered by the Deputy Director of Consolidation, in his judgment of reversal. 14. 13. It is lastly submitted that the documentary evidence filed by the petitioner namely domicile certificate, her physical disability certificate, ration card etc. remained un-controverted but the same has not been considered by the Deputy Director of Consolidation, in his judgment of reversal. 14. Sri Arun Kumar, learned counsel for the respondent no.3 has submitted that the petitioner, the alleged widow of Ram Saran has never appeared before the Courts below. Samana Devi is not the widow of Ram Saran but his daughter and she executed a sale deed in favour of respondent no.3, on the basis whereof she has been mutated over the land purchased by her. 15. He also submits that the order of remand passed by the Settlement Officer Consolidation was rightly set aside because the appellate Court had remanded the matter on a question which did not arise for consideration between the parties. He submits that the appellate Court has recorded that from the evidence on the record, Sudama Devi is the daughter of Ram Sarana and not Samana Devi, this aspect should have been considered by the Consolidation Officer as also the question as to who is the legal heir of Ram Saran, deceased. 16. It has also been very vehemently urged that all the documents filed by the petitioner are of a date subsequent to the order, whereby the application under Section 42-A of the Act was allowed on 05.11.1992. It is evidence which has been prepared for the purposes of the case and is therefore not worthy of evidence and has rightly been discarded by the Deputy Director of Consolidation. 17. I have considered the submissions made by the parties and have perused the record especially the revisional order which reveals that the Deputy Director of Consolidation has allowed the revision primarily relying upon the voter list which contains also the photographs of the voters. This voter list was filed by the respondent no.3. Upon a consideration of this evidence, the Deputy Director of Consolidation has recorded, that in it, the petitioner has been shown to be Chandramukhi wife of Ram Abhilash. He has also referred to the certificate of Gram Pradhan Noorpur, according to which, Samana Devi is the daughter of Ram Saran and the wife of Hiralal. 18. Upon a consideration of this evidence, the Deputy Director of Consolidation has recorded, that in it, the petitioner has been shown to be Chandramukhi wife of Ram Abhilash. He has also referred to the certificate of Gram Pradhan Noorpur, according to which, Samana Devi is the daughter of Ram Saran and the wife of Hiralal. 18. Apart from the impugned order, evidence and circumstances of the case, it would be relevant to note that the categorical finding based on the voter list available on record, has not been challenged in the writ petition. There is no whisper in the entire writ petition in this regard. The Deputy Director of Consolidation has also observed that this voter list has not been rebutted of challenged by the petitioner before the Revisional Court. The finding therefore returned on its basis not having been challenged must necessarily be accepted and for this reason alone, I do not consider it necessary to advert to the various other arguments that have been raised on behalf of the petitioner. The voter list is a public document containing the photographs of the voters and on its basis, a categorical finding of the fact has been returned which has not been assailed. 19. Since admittedly and as submitted by the learned counsel for the petitioner, the primary dispute was as to whether the petitioner is the widow of Ram Saran or not, the finding that she is in fact, Chandramukhi wife of Ram Abhilash, no case for any interference is made. The various documents which have not been annexed with the writ petition by the petitioner in support of her contentions are, as submitted by learned counsel for the respondents, documents which have been prepared after the order dated 05.11.1992 was passed whereby the mutation order in favour of Ram Saran was ordered to be corrected to read as Samana Devi daughter of Ram Saran in place of Samana Devi widow of Ram Saran. 20. The contention of the learned counsel for the petitioner is that in the revision wherein the impugned order has been passed was not maintainable, since it was directed against an interlocutory order of remand, also cannot be accepted. The Division Bench of this Court in the case of Dinanath and others v. Deputy Director of Consolidation and others, 2010 (28), Alld. The Division Bench of this Court in the case of Dinanath and others v. Deputy Director of Consolidation and others, 2010 (28), Alld. 1396 has held that an order of remand is not an interlocutory order and this Court is bound by this decision of the Division Bench aforesaid. 21. The writ petition is therefore concluded by pure findings of fact, besides being devoid of merits. 22. It is accordingly dismissed. Petition Dismissed.