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2021 DIGILAW 939 (ALL)

Vivekanand v. Deputy Director of Consolidation

2021-08-25

DINESH PATHAK

body2021
JUDGMENT : Dinesh Pathak, J. 1. Heard Sri Rahul Sahai, learned counsel for the petitioner, Sri Vineet Kumar Singh, learned counsel for the respondent No. 3 and learned Standing Counsel representing the respondent Nos. 1 and 2 at admission stage. 2. Instant writ petition has been preferred by the petitioner invoking extraordinary jurisdiction of this Court under Article 226 of the Constitution of India in the nature of certiorari for quashing the order dated 31.12.2020 (Annexure-1) passed by the Deputy Director of Consolidation (in brevity 'D.D.C.') (respondent No. 1) and the order dated 29.7.2019 (Annexure-2) passed by the Settlement Officer of Consolidation (in brevity 'S.O.C.') (respondent No. 2). 3. Facts giving rise to present writ petition is that Manager Singh (predecessor in interest of the petitioner) has moved an application under Section 9-A(2) of the U.P. Consolidation of Holdings Act, 1953 (in brevity 'U.P.C.H. Act') claiming his right and title over the property in question, which was ultimately allowed vide order dated 10.10.1973 passed by the Consolidation Officer (in brevity 'C.O.') on the basis of alleged compromise, which took place on the same day i.e. 10.10.1973 between Manager Singh (predecessor in interest of the petitioner) and Ram Parikhan (predecessor in interest of the respondent No. 3). Consequent to the order dated 10.10.1973, name of Manger Singh was ordered to be recorded in the revenue record in place of Ram Parikhan, whose name was ordered to be expunged. At a very belated stage, Ram Parikhan has moved a restoration application dated 27.12.1986 (Annexure-4) beseeching recall of the order dated 10.10.1973 on the ground of fraud. During pendency of the restoration application, Ram Parikhan has moved an application for expert opinion qua genuineness of thumb impression alleged to have been made by him. The matter travelled upto to the D.D.C. who has remitted the matter before the C.O. vide order dated 9.6.1988 with a direction that it should be decided afresh after summoning the records of the Appellate Court and the Revisional Court. Order dated 9.6.1988 was assailed by Manager Singh in Writ B No. 15609 of 1988, which was dismissed vide order dated 4.10.2010 (Annexure-7). In pursuance of the order dated 9.6.1988, the C.O. has reconsidered the matter and rejected the restoration application filed on behalf of Ram Parikhan on the ground that the Forensic Expert could not prove his report. Order dated 9.6.1988 was assailed by Manager Singh in Writ B No. 15609 of 1988, which was dismissed vide order dated 4.10.2010 (Annexure-7). In pursuance of the order dated 9.6.1988, the C.O. has reconsidered the matter and rejected the restoration application filed on behalf of Ram Parikhan on the ground that the Forensic Expert could not prove his report. Order passed by the C.O. was reversed by the S.O.C. vide its order dated 29.7.2019 (Annexure-2), and the matter was remitted before the C.O. to examine thumb impression of Ram Parikhan after summoning the record of the Revisional Court, as directed by order dated 9.6.1988, and decide it afresh. The D.D.C. has affirmed the order of S.O.C. by dismissing the revision filed on behalf of the petitioner vide its order dated 31.12.2020 (Annexure-1), which is under challenge in the present writ petition. 4. Learned counsel for the petitioner submits that the C.O. has considered the opinion of the Forensic Expert and assigned cogent reason in discarding the case of Ram Parikhan. The S.O.C. while reversing the order of the C.O. has not reversed the findings given by him, but has illegally shifted burden of proof upon the petitioner to prove genuineness of the thumb impression. The S.O.C. and the D.D.C. have erred in drawing adverse inference against the petitioner citing delay in initiation of proceeding under Rule 109 A of U.P. Consolidation of Holdings Rules, 1954 (in brevity 'U.P.C.H. Rules') for implementation of order dated 10.10.1973 passed by the C.O. While doing so, they have lost sight of the factor that it is the utmost solemn duty of the consolidation authorities to give effect of the order on the revenue record and for this kind of inaction on their part, the petitioner cannot be castigated. Counsel for the petitioner further submits that vide order dated 4.10.2010, Hon'ble High Court has directed the Court concerned to compare the signature and thumb impression of Ram Parikhan, which was available on the compromise and Vakalatnama, therefore, records of the Appellate Court and the Revisional Court, were not required before the C.O. as has been observed by the D.D.C. in the impugned order. It is further submitted that the contesting respondent is not disputing the order passed by the C.O. rather he is disputing the compromise which took place between the parties. It is further submitted that the contesting respondent is not disputing the order passed by the C.O. rather he is disputing the compromise which took place between the parties. It is further submitted that the impugned orders passed by the S.O.C. and the D.D.C. suffer from manifest error, arbitrariness and illegality and are liable to be quashed allowing this petition. 5. Per contra, learned counsel for the respondent-Caveator, in defending the orders passed by the S.O.C. and the D.D.C., submits that in remitting the matter the S.O.C. has given a categorical finding that the report submitted by the Forensic Expert was uncontroverted, which will be deemed to be correct. Under a mala-fide intention, Manager Singh had moved an application under Rule 109A of the U.P.C.H. Rules at a very belated stage and secured the mutation order on 13.4.1985, that too, after promulgation of denotification under Section 52 of the U.P.C.H. Act on 15.3.1980. The C.O. has failed to comply with the order dated 4.10.2010 passed by this Court in its letter and spirit. It is further contended that the C.O. has made an incorrect observation that the application dated 12.12.1987 was rejected by order dated 12.1.1988 whereas, in fact, it was partly allowed for forensic examination with respect to the notice, Vakalatnama and compromise and it was rejected only with respect to summoning of the records of the Appellate Court and the Revisional Court, wherein another compromise was allegedly filed. It is further submitted that the C.O. has failed to comply with the order dated 9.6.1988 passed by the D.D.C. by which records of the Appellate Court and the Revisional Court were ordered to be summoned for consideration before passing the final order. The D.D.C. has discussed the case in detail as to how proceeding before the C.O. was conducted ex-parte in passing the compromise order and has rightly affirmed the order of the S.O.C. There is no illegality or infirmity in the orders passed by the S.O.C. and the D.D.C. 6. In replication, counsel for the petitioner submits that a Court can independently examine the matter qua genuineness of thumb impression and not filing any objection against the report of an expert will not prove fatal as provided under Section 57 and 73 of the Indian Evidence Act, 1872 (in brevity 'Evidence Act'). In replication, counsel for the petitioner submits that a Court can independently examine the matter qua genuineness of thumb impression and not filing any objection against the report of an expert will not prove fatal as provided under Section 57 and 73 of the Indian Evidence Act, 1872 (in brevity 'Evidence Act'). He further submits that burden lies upon the contesting respondent to prove his case as provided under Section 102 and 103 of the Evidence Act. 7. Perused the record on board and carefully examined the submissions advanced by learned counsel for the parties. 8. Looking to the matter in dispute and the facts of the case, question involved in the present writ petition lies in narrow compass as to whether the S.O.C. has rightly remitted the matter before the C.O. to re-examine the factum of genuineness of thumb impression made by Ram Parikhan on the alleged compromise dated 10.10.1973 in the light of order dated 9.6.1988 passed by the D.D.C. as well as order dated 4.10.2010 passed by this Court. 9. The pivotal dispute in the present petition is with respect to the genuineness of compromise dated 10.10.1973 inked between Ram Parikhan (predecessor in interest of the respondent No. 3) and Manager Singh (predecessor in interest of the petitioner). As per case of contesting respondent, his property has fraudulently been usurped by the petitioner by way of enforcing a forged compromise and the lis was machinated up to the revisional stage by moving another compromise application only to demonstrate that contesting respondent had already litigated the matter up to the Revisional Court, which was allegedly culminated vide order dated 12.2.1981. Contesting respondent has averred in his restoration application dated 27.12.1986 that the order dated 10.10.1973 never came to his knowledge and arising out of that order a forged proceeding was made, which travelled upo to the stage of Revisional Court wherein another forged compromise was filed showing consent of contesting respondent. The S.O.C. and the D.D.C. have taken serious note of the fact that the petitioner has secured the order dated 13.4.1985 in an application under Rule 109 of the U.P.C.H. Rules, in implementation of the order dated 10.10.1973. The S.O.C. and the D.D.C. have taken serious note of the fact that the petitioner has secured the order dated 13.4.1985 in an application under Rule 109 of the U.P.C.H. Rules, in implementation of the order dated 10.10.1973. After securing the aforesaid implementation order dated 13.4.1985, Manager Singh (predecessor in interest of petitioner) has started interfering into the possession of the contesting respondent, who has enquired the record and came to know about the factum of alleged forgery. Consequently, he has moved a restoration application dated 27.12.1986 against alleged compromise order dated 10.10.1973 passed by the C.O. It is pointed out by the S.O.C. that till 1986, contesting respondent was throughout in possession over the property in question and his possession was interfered for the first time in the year 1986 by Manager Singh, after securing the order dated 13.4.1985. Order dated 13.4.1985 was got passed after considerable time from denotification under Section 52 of the U.P.C.H. Act promulgated on 15.3.1980. 10. I do not find any substance in the submission made by learned counsel for the petitioner that Hon'ble High Court, vide order dated 4.10.2010, has directed to compare the thumb impression of Ram Parikhan which was available on the compromise and Vakalatnama. Perusal of the order dated 4.10.2010 evinces that no such direction was issued by this Court, rather it was observed that, in case, the evidence is to the effect that compromise and Vakalatnama do not bear the signatures of Ram Parikhan, the application for recall alongwith delay condonation application would deserve to be allowed. For ready reference, operative portion of the order dated 4.10.2010 passed in Writ B No. 15609 of 1988, which has been relied upon by learned counsel for the petitioner, is quoted hereunder: ''In the opinion of the Court the expert evidence will determine whether the application of the respondents will survive or not. In case the expert evidence is to the effect that the signatures of the respondents were there on the compromise and the Vakalatnama, the application filed by the respondents would be liable to be rejected and in case the evidence is to the effect that the compromise and Vakalatnama do not bear the signatures of the respondents, their application for recall alongwith the delay condonation application would deserve to be allowed. Thus, there is no justification for deciding the delay condonation application and the merits of the recall application separately." 11. A bare perusal of aforesaid order passed by Co-ordinate Bench of this Court reveals that the Court has not intended to compare the signatures/thumb impressions of Ram Parikhan made over the compromise and Vakalatnama. The C.O. has clearly observed in its order dated 22.11.2018 that the records of the Appellate Court and the Revisional Court were not summoned and report of the Forensic Expert has been called for after comparing thumb impressions of Ram Parikhan made on the compromise application and restoration application. It appears that the C.O. was influenced with the deposition of the Forensic Expert, who has created doubt qua the thumb impressions made on the aforesaid documents, as mentioned above. On the query made by Court he deposed that difference in two thumb impressions made by same person could be occurred owing to use of two different hands i.e. right hand thumb impression or left hand thumb impression. The C.O. has inferred that in absence of mention of particular thumb impression (right or left), it cannot be said that compared thumb impression do not belong to Ram Parikhan. 12. In rejecting restoration application, the C.O. has failed to consider the particular thumb impression of Ram Parikhan, which was admitted or proved to the satisfaction of the Court, as required under Section 73 of the Evidence Act, to have been made by Ram Parikhan for the purpose of comparison with the thumb impressions on the compromise application and the Vakalatnama, which is to be proved, as was directed by this Court vide its order dated 4.10.2010. Respondent Nos. 1 and 2 have rightly observed that the records of appeal and revision ought have been summoned by C.O. in compliance of the order dated 9.6.1988, which had attained finality in the light of order dated 4.10.2010 passed by this Court. Thumb impression made on the Vakalatnama filed at the time of compromise, has not been examined as required. Petitioner is relying upon the compromise and he will be benefited due to the said compromise, in case, it is found to be genuine. Therefore, burden lies upon the petitioner to prove the compromise genuine. Morevoer, the provisions as cited above by the learned counsel for the petitioner does not come to his aid. Petitioner is relying upon the compromise and he will be benefited due to the said compromise, in case, it is found to be genuine. Therefore, burden lies upon the petitioner to prove the compromise genuine. Morevoer, the provisions as cited above by the learned counsel for the petitioner does not come to his aid. The C.O. was under an obligation to summon the records of the Appellate Court and the Revisional Court as directed by order dated 9.6.1988 and should have, accordingly, compared the thumb impressions of Ram Parikhan to prove its genuineness. 13. In this conspectus as above, I do not find any illegality, perversity or error in the orders passed by the respondent Nos. 1 and 2 respectively. The S.O.C. has rightly remitted the matter before the C.O. which has been affirmed by the D.D.C., to re-examine the genuineness of thumb impression of Ram Parikhan (predecessor in interest of respondent No. 3) over the documents in question. Counsel for the petitioner has failed to substantiate his submissions in assailing the impugned orders to warrant the indulgence of this Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India. 14. Present writ petition is devoid of merits and is, accordingly, dismissed. 15. However, looking to the long drawn litigation, since 1973, it will be appropriate to issue a direction to the Consolidation Officer to immediately summon all the records in pursuance of order dated 9.6.1988 passed by the D.D.C. and decide the matter afresh, expeditiously, preferably within a period of ten months from the date of production of a copy of this order. It is ordered accordingly. 16. It is expected that it should be decided by reasoned and speaking order, in accordance with law, after affording opportunity of hearing to the parties concerned without granting unnecessary adjournments. 17. It is made clear that any observation made by this Court in the instant writ petition will not affect the merits of the case pending before the C.O. who should decide the same on its own merits. 18. The petitioner shall file a computer generated copy of this order before the authority concerned, after downloading it from the official website of High Court, Allahabad, which shall be supported by an affidavit. The authority concerned shall verify the same from the official website of this Court.