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2022 DIGILAW 1262 (ALL)

Khummani v. D. D. C.

2022-08-08

CHANDRA KUMAR RAI

body2022
JUDGMENT : CHANDRA KUMAR RAI, J. 1. Heard Sri Kamal Mehrotra and Sri Randhir Jain, learned counsel for the petitioner and Sri Babu Lal Ram, learned counsel for the contesting respondents. 2. Brief facts of the case are that in the Basic Year of the consolidation operation, Mathuri (husband of the petitioner) along with other co-sharer was recorded over plots of Khata Nos. 343, 219 & 276, situated in village - Kursara, Pargana-Jalaun, District Jalaun. 3. Against the Basic Year entry, several objections were filed under Section 9-A(2) of the U.P. C.H. Act, one set of objection was filed by respondent no. 2/Sukh Ram on the basis of adoption deed alleged to be executed by Sri Mathuri in his favour on 13.6.1973 and another set of objection was filed by petitioner - Smt. Khumani, being daughter of deceased Shri Mathuri, so both claimed that their name be recorded on the place of deceased Shri Mathuri. In order to appreciate the controversy, family pedigree will be relevant which is as follows: 4. Before Consolidation Officer, 4 issues were framed in which issue no. 2 was, who is legal heir of deceased Mathuri and issue no. 3 was whether Sukh Ram is adopted son of Mathuri? 5. Oral and documentary evidences were adduced before Consolidation Officer by petitioner as well as respondent no. 2. While deciding the issues nos. 2 & 3, Consolidation Officer considered the oral and documentary evidence, the provision of Hindu Adoption and Maintenance Act as well as Hindu Minority and Guardianship Act were also taken into consideration. Consolidation Officer recorded finding of fact that formalities of adoption as provided under Section 9 of the Hindu Adoption and Maintenance Act is not proved so Sukh Ram cannot be held as heir of Mathuri rather petitioner Khummani is the legal heir of deceased Mathuri, being his daughter, accordingly, Consolidation Officer by his order dated 30.4.1974 directed that name of Smt. Khummani-petitioner be recorded as legal heir of Mathuri, in respect of plots of Khata Nos. 323, 276 & 219 and the objection of Sukh Ram – respondent no. 2 on the basis of adoption deed was rejected. Respondent no. 2 challenged the order dated 30.4.1974 through appeal under Section 11(1) of the U.P. C.H. Act which was dismissed by the Settlement Officer (Consolidation) by order dated 20.11.1974. Respondent no. 323, 276 & 219 and the objection of Sukh Ram – respondent no. 2 on the basis of adoption deed was rejected. Respondent no. 2 challenged the order dated 30.4.1974 through appeal under Section 11(1) of the U.P. C.H. Act which was dismissed by the Settlement Officer (Consolidation) by order dated 20.11.1974. Respondent no. 2 challenged the appellate order dated 20.11.1974 through revision under Section 48 of the U.P. C.H. Act and the Deputy Director of Consolidation by order dated 24.09.1980, allowed the revision filed by respondent no. 2, setting aside the orders of Consolidation Officer and Settlement Officer (Consolidation) and ordered to record the name of respondent no. 2 over disputed Khata Nos. 343, 219 & 276 after expunging the name of petitioner-Mathuri, hence, this writ petition on behalf of the petitioner. 6. The writ petition was admitted on 8.1.1981 and the interim order was also granted staying the operation of the impugned order dated 24.9.1980. In the meanwhile, on 3.8.1982, interim order dated 8.1.1981 was modified to the extent that if the order dated 24.9.1980 has already not been implemented, then the operation of the order shall remain suspended till further orders. 7. Learned counsel for the petitioner submitted that revisional court while passing the impugned order dated 24.9.1980 has exceeded his revisional jurisidiction as that time revisional court was having limited jurisdiction. He placed upon Section 48 of the U.P. C.H. Act as on prior to 10.11.1980 and subsequent with effect from 10.11.1980 which are as follows: Section 48 of the U.P. C.H. Act before 10.11.1980 was as follows: 48(1) The Director of Consolidation may call for and examine the record of any case decided or proceedings taken by any subordinate authority for the purpose of satisfying himself as to the regularity of the proceedings; or as to the correctness, legality or propriety of any order passed by such authority in the case or proceedings, may, after allowing the parties concerned an opportunity of being heard, make such order in the case or proceedings as he thinks fit. (2) Powers under sub-section (1) may be exercised by the Director of Consolidation also on a reference under subsection (3). (3) Any authority subordinate to the Director of Consolidation may, after allowing the parties concerned an opportunity of being heard, refer the record of any case or proceedings to the Director of Consolidation for action under sub-section (1). (2) Powers under sub-section (1) may be exercised by the Director of Consolidation also on a reference under subsection (3). (3) Any authority subordinate to the Director of Consolidation may, after allowing the parties concerned an opportunity of being heard, refer the record of any case or proceedings to the Director of Consolidation for action under sub-section (1). Explanation - For the purposes of this section, Settlement Officers, Consolidation, Consolidation Officers, Assistant Consolidation Officers, Consolidator and Consolidation Lekhpals shall be subordinate to the Director of Consolidation. Section 48 of the U.P. C.H. Act with effect from 10.11.1980 as amended by U.P. Act No. 3 of 2002 which is as follows: 48(1) The Director of Consolidation may call for and examine the record of any case decided or proceedings taken by any subordinate authority for the purpose of satisfying himself as to the regularity of the proceedings; or as to the correctness, legality or propriety of any order other than an interlocutory order passed by such authority in the case or proceedings, may, after allowing the parties concerned an opportunity of being heard, make such order in the case or proceedings as he thinks fit. (2) Powers under sub-section (1) may be exercised by the Director of Consolidation also on a reference under subsection (3). (3) Any authority subordinate to the Director of Consolidation may, after allowing the parties concerned an opportunity of being heard, refer the record of any case or proceedings to the Director of Consolidation for action under sub-section (1). Explanation (1) - For the purposes of this section, Settlement Officers, Consolidation, Consolidation Officers, Assistant Consolidation Officers, Consolidator and Consolidation Lekhpals shall be subordinate to the Director of Consolidation. Explanation (2) - For the purposes of this section the expression 'interlocutory order' in relation to a case or proceeding, means such order deciding any matter arising in such case or proceeding or collateral thereto as does not have the effect to finally disposing of such case or proceeding. Explanation (3) - The power under this section to examine the correctness, legality or propriety of any order includes the power to examine any finding, whether of fact or law, recorded by any subordinate authority, and also includes the power to re-appreciate any oral or documentary evidence.” (Explanation (3) has been inserted by Legislature by U.P. Act No. 3 of 2002 w.e.f. 10.11.1980) 8. Accordingly, learned counsel for the petitioner submitted that Deputy Director of Consolidation illegally allowed the revision, setting aside the order of Consolidation Officer and Settlement Officer (Consolidation) who recorded finding of fact on the issue of execution of adoption deed. He next submitted that revisional court has failed to consider the school certificate of the respondent no. 2 in which name of his natural father was mentioned rather name of adopted father. He also submitted that revisional court has failed to notice that tenure holder Mathuri died on 10.8.1973 and petitioner applied for mutation on 4.8.1973. He further submitted that revisional court failed to notice the provisions of Section 9 of Hindu Adoption and Maintenance Act and which was discussed in detail by Consolidation Officer and recorded finding that adoption deed set up by respondent no. 2 is not proved. He further submitted that oral evidence adduced and documentary evidences adduced by both parties were fully taken into consideration by Consolidation Officer but Deputy Directory of Consolidation without considering the evidences on record, in accordance with law, arbitrarily allowed the revision which is illegal and liable to be quashed and the order of Consolidation Officer and Settlement Officer (Consolidation) be maintained. 9. On the other hand, counsel for the respondent no. 2 submitted that revisional court has rightly allowed the revision while exercising revisional power under Section 48 of the U.P. C.H. Act. He further submitted that adoption was duly proved by respondent no. 2 but Consolidation Officer has recorded wrong finding that adoption deed was not proved, the Deputy Directory of Consolidation has rightly allowed the revision, holding that adoption deed has been proved, as such, no interference is required against the impugned orders. 10. I have considered the argument advanced by learned counsel for the parties and perused the record. 11. There is no dispute about the fact that petitioner was claiming right under Section 9A(2) of the U.P. C.H. Act, being widow of recorded tenure holder Mathuri and respondent no. 2 was claiming on the basis of adoption deed alleged to be executed on 13.6.1973 by Mathuri in favour of respondent no. 2. Consolidation Officer allowed the objection of the petitioner in respect to Khata No. 343, 276 & 219 and claim of respondent no. 2 on the basis of alleged adoption deed was not accepted. 2 was claiming on the basis of adoption deed alleged to be executed on 13.6.1973 by Mathuri in favour of respondent no. 2. Consolidation Officer allowed the objection of the petitioner in respect to Khata No. 343, 276 & 219 and claim of respondent no. 2 on the basis of alleged adoption deed was not accepted. Settlement Officer (Consolidation) maintained the order of Consolidation Officer by dismissing the appeal of respondent no. 2. In revision, Deputy Director of Consolidation allowed the revision, set aside the orders of Consolidation Officer and Settlement Officer (Consolidation) and ordered to record the name of respondent no. 2 on the basis of adoption deed. 12. The Apex Court in Sher Singh (Dead) by Legal Representatives vs. Joint Director of Consolidation and Others, 1978 RD 170 held as under: “The principal question that falls for our determination in this case is whether in passing the impugned order, the Joint Director of Consolidation, exceeded the limits of the jurisdiction conferred on him under section 48 of the 1953 Act. For a proper decision of this question, it is necessary to advert to section 48 of the 1953 Act is it stood on the relevant date before its amendment by Act No. VIII of 1963 “Section 48 of the U.P. Consolidation of Holdings Act: The Director of Consolidation may call for the record of any case if the Officer (other than the Arbitrator) by whom the case was decided appears to have exercised a jurisdiction not vested in him by law or to have failed to exercise jurisdiction so vested, or to have acted in the exercise of his jurisdiction illegally or with substantial irregularity and may pass such orders in the case as it thinks fit.” As the above section is pari materia with section 115 of the Code of Civil Procedure, it will be profitable to ascertain the scope of the revisional jurisdiction of the High Court. It is now well settled that the revisional jurisdiction of the High Court is confined to cases of illegal or irregular exercise or non-exercise or illegal assumption of the jurisdiction by the subordinate courts. If a subordinate court is found to possess the jurisdiction to decide a matter, it cannot be said to exercise it illegally or with material irregularity even if it decides the matter wrongly. If a subordinate court is found to possess the jurisdiction to decide a matter, it cannot be said to exercise it illegally or with material irregularity even if it decides the matter wrongly. In other words, it is not open to the High Court while exer-cising its jurisdiction under section 115 of the Code of Civil Procedure to correct errors of fact howsoever gross or even errors of law unless the errors have relation to the jurisdiction of the-court to try the dispute itself. 13. Since the order passed by revisional court, was of 24.9.1980 when revisional court was having limited jurisdiction under Section 48 of the U.P. C.H. Act as quoted above, as such, impugned revisional order is without jurisdiction. Consolidation Officer after considering each and every oral as well as documentary evidence on record as well as provisions of Hindu Minority and Guardianship Act has recorded finding of fact that adoption deed dated 13.6.1973 set up by respondent no. 2 is not proved and cannot be believed but Deputy Director of Consolidation has arbitrarily held without considering the oral evidence as well as documentary evidences adduced by the parties that adoption deed is proved and respondent no. 2 is to be recorded over disputed plot in place of petitioner which is wholly without jurisdiction, order as Deputy Director of Consolidation while exercising revisional power on 24.9.1980 was having limited jurisdiction. Deputy Director of Consolidation further failed to consider the reasoning and findings recorded by the Consolidation Officer and Settlement Officer (Consolidation) on the question who is heir of Mathuri and whether Sukhram is adopted son of Mathuri, as such, impugned revisional order cannot be sustained. 14. In view of the facts and circumstances mentioned above as well as ratio of law laid down in Sher Singh (supra), the impugned revisional order dated 24.9.1980 passed by Deputy Director of Consolidation, Jalaun, Urai in Revision No. 258, under Section 48 of the U.P. C.H. Act is liable to be quashed and the same is hereby quashed. 15. Writ petition is allowed. Order passed by the Consolidation Officer dated 30.4.1974 and Settlement Officer (Consolidation) dated 20.11.1974 are hereby maintained. No order as to costs.