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2019 DIGILAW 2494 (ALL)

Radhey Shyam v. D. D. C. Sultanpur

2019-11-06

SANGEETA CHANDRA

body2019
ORDER : Sangeeta Chandra, J. 1. Heard learned counsel for the petitioner and Sri Jay Shankar Shukla, who appears on behalf of respondent nos. 5 to 10. 2. Initially, when the writ petition was taken up before the Court, a preliminary objection was raised by Sri Jay Shankar Shukla on the basis of a judgment rendered by this Court in Shiv Sharan vs. Deputy Director of Consolidation, Unnao and another,: 2013 (31) LCD 608 , and this Court had granted time to the learned counsel for the petitioner to come prepared on the preliminary objection raised. 3. Learned counsel for the petitioner has come prepared today before this Court. 4. Sri Jay Shankar Shukla has again produced a copy of the judgment rendered by a coordinate Bench of this Court in Shiv Sharan (supra). 5. In the aforesaid case cited by the learned counsel for the private respondents, this Court had refused to interfere in an order passed by the Deputy Director of Consolidation dated 26.9.2012, whereby the revision was allowed and the matter was remanded back to the Consolidation Officer with a direction to decide the matter after giving opportunity to both the parties to adduce evidence. It was argued before the Court that the Consolidation Officer had earlier given opportunity of hearing to both the parties and both the parties have filed their oral and documentary evidence and the Consolidation Officer has passed the order on merits and, therefore, there was no need to have remanded the matter to the Consolidation Officer again on the ground that no opportunity of hearing was given to the respondents. 6. In Para-5 of the said judgment, there is a specific mention that admittedly the order passed by the Consolidation Officer was ex-parte. Since the Consolidation Courts can decide right and title also, hence this Court believed that the Deputy Director of Consolidation, Unnao did not commit any illegality in remanding the case to the Consolidation Officer so as to allow both the parties to adduce evidence and then the Consolidation Officer could have dealt with that evidence and passed orders on merits. Since the Consolidation Courts can decide right and title also, hence this Court believed that the Deputy Director of Consolidation, Unnao did not commit any illegality in remanding the case to the Consolidation Officer so as to allow both the parties to adduce evidence and then the Consolidation Officer could have dealt with that evidence and passed orders on merits. This Court had relied upon two judgments of the Supreme Court rendered in Mangal Prasad Tamoli (Dead) by LRs vs. Narvedeshwar Mishra (Dead) by LRs, : 2005 (99) RD 177 , wherein it was held that the remand order is only an interlocutory order, which does not terminate the proceedings and, therefore, if a party is aggrieved, he can challenge the order of remand after the final judgment is made on such remand. This Court also relied upon the judgment rendered by the Supreme Court in Satyadhyan Ghoshal and others vs. Smt. Deo Rajain Devi and another,: (1960) 3 SCR 590 and Kshitish Chandra Bose vs. Commissioner of Ranchi, (1981) 2 SCC 764, to observe that the Supreme Court was of the view that an order of remand was an interlocutory judgment, which did not terminate the proceedings and hence, could be challenged in an appeal from the final order. The coordinate Bench also relied upon two judgments of this Court in Gopal Prasad vs. Board of Revenue at Lucknow, 2007 (102) RD 310 and Dularey and others vs. Deputy Director of Consolidation and others, 2005 (99) RD 174, wherein this Court had observed that the revisional court should not have interfered with the remand order passed by the appellate court, as it was still open to the parties to adduce evidence before the trial court. 7. Learned counsel for the petitioner has pointed out that the petitioner is 60 years old and was suffering from brain hemorrhage. At the time when he had filed his objection to the claim of the private respondents to the property of one Ram Roop, who died in 1984, the petitioner was his son and had produced all evidence from the Pariwar Register and the School Register to show that he was the son of Late Ram Roop and, therefore, entitled to succeed to his property. The private respondents, on the other hand, were claiming that Ram Roop died issue-less. 8. The private respondents, on the other hand, were claiming that Ram Roop died issue-less. 8. It has been submitted by the learned counsel for the petitioner that the petitioner fought for 34 years before the Consolidation Officer decided the issue in favour of the petitioner after dealing with all oral and documentary evidence and the order passed by the Consolidation Officer was affirmed by the Settlement Officer of Consolidation, Sultanpur on 19.6.2019. Now, the Deputy Director of Consolidation by his order dated 20.9.2019 has remanded the matter to the Consolidation Officer to consider it afresh only on the ground that Radhey Shyam never appeared before the Consolidation Officer and the reasons for non appearance being given as brain hemorrhage being suffered by Radhey Shyam, were not substantiated by any medical certificate in this regard. It has also been observed by the revisional court in its order dated 20.9.2019 that there was overwriting on one page of the School Register. 9. Learned counsel for the petitioner has pointed out from the order of the Consolidation Officer that the question of overwriting was also raised before the Consolidation Officer by the private respondents and the Consolidation Officer has dealt with this aspect of the matter also in the School Register. 10. It has been submitted by the learned counsel for the petitioner on the basis of the judgment rendered by the Supreme Court in Ram Autar and others vs. Deputy Director of Consolidation and others, 1991 Supp (1) SCC 552, that the Supreme Court has observed that the High Court should have remanded the matter to the Deputy Director of Consolidation and not to the Consolidation Officer as that would have saved the parties from fighting at three stages and would have expedited the final disposal of the matter. The question before the Supreme Court was with regard to the objections under Section 9-A of the U.P. Consolidation of Holdings Act being decided by the Consolidation Officer in favour of one party against which, the other party went in appeal. In the appeal, the objections that were rejected by the Consolidation Officer, were said to be valid objections and were allowed. In the appeal, the objections that were rejected by the Consolidation Officer, were said to be valid objections and were allowed. The appellants after unsuccessfully moving the Deputy Director of Consolidation in revision filed a writ petition before the High Court, which was dismissed by the Writ Court and the appellants thereafter filed an appeal, which was also dismissed by the Division Bench. The Supreme Court observed that the case of the respondents was that no notice was ever sent to them at the final stage when the order was passed in favour of the appellants and without hearing the order being ex-parte, ought to have been set aside and the matter was rightly remanded. The Supreme Court, however, observed that the High Court should have remanded the matter to the Deputy Director of Consolidation and not to the Consolidation Officer as that would have saved the parties from fighting at three stages before the revenue officers and would have expedited the final disposal of the case. 11. Learned counsel for the petitioner has also relied upon a judgment rendered by a coordinate Bench of this Court in Vijay Nath and others vs. Deputy Director of Consolidation and others,: 2019 (9) ADJ 85 , wherein this Court observed that after insertion of Explanation 3 to Section 48 of the Act, the Deputy Director of Consolidation is empowered to examine any finding whether of fact or law recorded by the subordinate authority and also to reappreciate any oral or documentary evidence. This Court has observed that instead of remanding the matter to the Consolidation Officer, the Deputy Director of Consolidation should have exercised his jurisdiction under Section 48(3) and should have decided the matter on merits. 12. Learned counsel for the petitioner has also placed reliance upon a judgment of a coordinate Bench of this Court in Writ-B No. 4377 of 2014 (Santosh Kumar vs. D.D.C. and others), decided on 29.1.2014, wherein the Court has observed that in case the order of the Settlement Officer of Consolidation suffered from errors, the Deputy Director of Consolidation could have considered the matter on his own and passed suitable orders instead of remanding the case. The remand of the case causes delay and prolongs litigation as well as harassment to the parties. The remand of the case causes delay and prolongs litigation as well as harassment to the parties. This Court observed on the basis of the judgment rendered by the Supreme Court in Ashwin Kumar Patel vs. Upendra J. Patel, AIR 1999 SC 1125 , that exercising the power of remand is a luxury exercise of the jurisdiction. The Court should refrain from remanding the case and should make endeavour to decide the case finally instead of remanding the case. This Court also relied upon a Division Bench judgment rendered in Deena Nath and others vs. Deputy Director of Consolidation and others, 2010 (110) RD 584, wherein it has been held that an order of remand cannot be treated as an interlocutory order within the meaning of Explanation-2 of Section 48 of the Act and a revision was maintainable. It observed that since the entire record was available, instead of remanding the matter, it should have been decided on merits by the revisional court. 13. Learned counsel for the petitioner has also placed reliance upon the judgment rendered in Ashwin Kumar Patel (supra) cited by the coordinate Bench in the case of Santosh Kumar (supra), wherein similar observations have been made by the Supreme Court. 14. Sri Jay Shankar Shukla, on the other hand, has pointed out from the record that the petitioner Radhey Shyam never appeared in person before the Consolidation Officer. He gave his Power of Attorney to his paternal uncle, who prosecuted the matter before the Consolidation Officer and also before the appellate court and the revisional court, saying that Radhey Shyam had suffered from brain hemorrhage. He has pointed out from a judgment rendered by the Supreme Court in Janki Vashdeo Bhojwani and another vs. Indusind Bank Ltd. and others, 2005 (98) RD 371 , that the Supreme Court had found that it was obligatory upon the appellants to enter the witness box and discharge the burden of proving their claim. The question before the Court was with regard to Debts Recovery Tribunal and the proceedings therein where the Debts Recovery Tribunal was directed to record a finding as to whether or not on the date, the decree was passed, the appellants were co-owners of the property in question and to what extent. The question before the Court was with regard to Debts Recovery Tribunal and the proceedings therein where the Debts Recovery Tribunal was directed to record a finding as to whether or not on the date, the decree was passed, the appellants were co-owners of the property in question and to what extent. One of the questions, that was referred to, was with regard to whether the appellants had independent source of income to have contributed towards purchase of the property in question. Such a question could only have been answered by the appellants themselves and not by their Power of Attorney holder. 15. It has been submitted by the learned counsel for the petitioner that since all oral and documentary evidence was available on the file on the basis of which, the order was passed by the Consolidation Officer, the Deputy Director of Consolidation could have summoned the file and taken evidence, if he so wished afresh with regard to overwriting in the School Register and passed appropriate orders instead of remanding the matter to the Consolidation Officer. 16. It has been submitted by the petitioner's counsel that Ram Roop died in 1984 and the Consolidation Officer took 34 years to pass the order after considering all oral and documentary evidence, and it will take another 34 years or may be ten years for the Consolidation Officer to decide afresh. The petitioner is also 60 years of age. 17. It has been submitted by the learned counsel for the petitioner that Radhey Shyam is now well and he has filed an affidavit in this writ petition before this Court and he can certainly appear before the Deputy Director of Consolidation and give evidence with regard to his claim to be the son of Late Ram Roop and this Court, therefore, may remand the matter to the Deputy Director of Consolidation to consider it afresh on merits and pass appropriate orders. 18. To the aforesaid submission of learned counsel for the petitioner, learned counsel for the private respondents has no objection and he reiterates that Radhey Shyam should appear and prove his claim of being the son of Late Ram Roop. 19. Consequently, the order passed by the Deputy Director of Consolidation, Sultanpur dated 20.9.2019, impugned in this writ petition, is set aside. 19. Consequently, the order passed by the Deputy Director of Consolidation, Sultanpur dated 20.9.2019, impugned in this writ petition, is set aside. The matter is remanded to the Deputy Director of Consolidation, Sultanpur to consider the same on the merits of the claim made by the petitioner herein Radhey Shyam to be the son of Late Ram Roop. The Deputy Director of Consolidation, Sultanpur shall summon the record of oral and documentary evidence mentioned in the finding of the Consolidation Officer and also examine Radhey Shyam on oath and then pass appropriate orders on the merits of the case within a period of three months from the date, a certified copy of this order is produced before him. 20. The writ petition stands allowed.