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2017 DIGILAW 1768 (ALL)

MUNNA SINGH v. DEPUTY DIRECTOR CONSOLIDATION

2017-07-31

RAJAN ROY

body2017
JUDGMENT : Rajan Roy, J. Heard Ms. Manjusha holding brief of Shri S.K. Sharma, learned counsel for the petitioners, learned Additional Chief Standing Counsel for the State and Shri Ghufran Hussain, learned counsel for the opposite party no. 2. 2. This is a writ petition under Article 226 of the Constitution of India challenging an order dated 22.02.2013 passed by the Deputy Director of Consolidation in Revision No. 196/360 under Section 48 of the U.P. Consolidation of Holdings Act allowing the revision of the opposite party no. 2, quashing the order of the Appellate Court dated 24.12.2011 and restoring the order of the Consolidation Officer dated 14.07.2011 in favour of the opposite party no. 2. 3. The contention of the learned counsel appearing for the petitioners was that the order impugned in the revision filed by the opposite party no. 2 was one of remand, therefore, the revision was not maintainable and no interference should have been made as none of the parties were prejudiced. The other contention was that the basis for remanding the matter back to the Consolidation Officer was the absence of opportunity by the Consolidation Officer to the petitioners herein. 4. Apart from the above, no other ground was pressed on behalf of the petitioners. 5. Learned counsel for the opposite parties on the other hand submitted that the dispute at the stage of Section 9 of the U.P. Consolidation of Holdings Act, 1953 was regarding double entry in respect of the Gata No. 498 measuring 4.58 acres (Khata No. 196/1). The name of Shri Harnam Singh erroneously got recorded in respect of the said Gata along with that of Smt. Lachhimini who was the tenure holder. No objection was filed by Shri Harnam Singh at the stage of Section 9 raising claim to title in respect of said Gata based on adverse possession and it is only subsequently when the matter was remanded back by the S.O.C. in the first round of litigation that a fresh plea was taken based on adverse possession, which was impermissible. It is this fact which has been taken into consideration by the revisional Court along with other factors to determine that the dispute was regarding double entry and not title. Moreover, he says that the will executed by Smt. Lachhimini in favour of the opposite party no. It is this fact which has been taken into consideration by the revisional Court along with other factors to determine that the dispute was regarding double entry and not title. Moreover, he says that the will executed by Smt. Lachhimini in favour of the opposite party no. 2 was duly proved as per law, therefore, the order of the S.O.C. remanding the matter back to the C.O. who had already considered the relevant aspects of the matter based on the evidence available was uncalled for and the revisional Court has rightly interfered with the matter. 6. After hearing learned counsel for the parties and perusing the records, the Court finds that the revisional Court has considered the relevant aspects of the matter threadbare. It is borne out that Gata No. 498 measuring 4.58 acres, Gata No. 163 measuring 1.20 acres and Gata No. 489 measuring 1.25 acres were recorded as part of Khata No. 220 in the Khatauni of 1381 fasli in the name of Smt. Lachhimini W/o Chhedi. In the same Khatauni at Khata No. 261 as against Gata No. 478 measuring 1.27 acres the name of Harnam Singh S/o Balbhardra Singh was recorded since 1370 fasli. In the Khatauni of 1384-89 fasli also the same entries were there. Subsequently, in respect of Gata No. 162 the name of Smt. Lachhimini was struck off and the name of Shri Mangre and Shri Babu S/o Shri Jhalla was recorded in respect thereof about which there was no dispute, but, in the next Khatauni of 1390-95 fasli while the name of Smt. Lachhimini continued to be recorded in respect of Gata No. 498 but along with it the name of Shri Harnam Singh got recorded in respect of Gata No. 498 along with Gata No. 498 along with Gata No. 478 which was already recorded in his name, whereas, Gata No. 498 was never recorded in the name of Shri Harnam Singh. It is only Gata No. 478 which was recorded in his name. Gata No. 498 belonged to Smt. Lachhimini alone. From the aforesaid the revisional Court has concluded that double entry was made in favour of Harnam Singh in 1390-95 fasli which continued till the basic year Khatauni and it is this dispute which arose in Section 9 proceedings. It is only Gata No. 478 which was recorded in his name. Gata No. 498 belonged to Smt. Lachhimini alone. From the aforesaid the revisional Court has concluded that double entry was made in favour of Harnam Singh in 1390-95 fasli which continued till the basic year Khatauni and it is this dispute which arose in Section 9 proceedings. The revisional Court has specifically mentioned that Shri Harnam Singh did not raise any claim of title to the land of Gata No. 498 based on adverse possession, therefore, the revisional Court opined that the plea based on such adverse possession subsequently was not maintainable nor acceptable. The revisional Court has also considered title of Smt. Lachhimini in respect of Gata No. 498 and has arrived at the conclusion that she was the recorded tenure holder having derived titled from Shri Chhedi. The contention of the petitioners herein that there was no such woman as Lachhimini has not been accepted, inter alia, for the reason that on the one hand the petitioners had tried to derive the benefit of the statement of Smt. Lachhimini and the other hand they are denying the very existence such woman. Apart from it, other relevant facts relating to the lineage of Shri Chhedi have also been considered by the revisional Court in this regard. The will in favour of the opposite party no. 2 has been found to be proved as per section 68 of the Indian Evidence Act, 1872 and Section 63 of the India Succession Act, 1925. The revisional Court also found that sufficient opportunity was given to the petitioners/respondents before the Consolidation Officer to lead oral and documentary evidence. 7. After perusing the records, it was specifically recorded that on 02.07.2008 the respondents had closed their evidence and thereafter the matter was fixed for hearing. The order sheet of the said date also contained an endorsement of the Advocate of the petitioners herein, respondents before the revisional Court, to the effect 'evidence closed'. Thus, on a consideration of all the relevant aspects, the revisional Court has found the order of remand by the S.O.C. to be untenable and restored the Consolidation Officer which was in favour of the opposite party no. 2. True it is that normally against an order of remand interference is not made but then it is equally true that an order of remand should not be made casually. 2. True it is that normally against an order of remand interference is not made but then it is equally true that an order of remand should not be made casually. As there was sufficient evidence before the Consolidation Officer with sufficient opportunity having been granted to the parties to adduce evidence and present their case, therefore, there was no reason for the S.O.C. to remand the matter back to the Consolidation Officer. 8. This Court does not find any error in the order of the revisional Court in setting aside such an order itself. As no flagrant error of law has been found in the order of the revisional Court, therefore, there is no reason to interfere in the matter under Article 226 of the Constitution of India. 9. The writ petition is dismissed.