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2024 DIGILAW 150 (ALL)

Hari Prakash Saxena v. State Of U. P.

2024-01-11

DINESH PATHAK

body2024
JUDGMENT : Dinesh Pathak, J. 1. Heard learned counsel for the petitioner, learned counsel for the private respondent no.4 as well as learned Standing Counsel for the State respondents and perused the record. 2. The petitioner has invoked the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India assailing the order dated 25.07.2023 (Annexure No.9) passed by Deputy Director of Consolidation (respondent no.2) in Revision No.0234 of 2023 affirming the order dated 23.03.2023 (Annexure No.7) passed by Settlement Officer of Consolidation (respondent no.3), rejecting the amendment application moved on behalf of the present petitioner in appeal No.1761 (Hari Prakash Saxena vs. Smt. Shashi Saxena). 3. Facts culled out from the record are that the property in question basically belonged to Ajudhya Prasad. At the advent of consolidation proceeding, present petitioner has filed an objection under Section 9 -A (2) of U.P. Consolidation of Holdings Act (In brevity U.P.C.H. Act). On the basis of settlement took place between the petitioner and Smt. Bhagwandei (wife of Ajudhya Prasad), Assistant Consolidation Officer has allowed the objection, vide order dated 08.12.1986, granting 2/3 share to the present petitioner and 1/3 share to Smt. Bhagwandei. Having been aggrieved, respondent no.4 has filed appeal at belated stage. Settlement Officer of Consolidation, vide order dated 19.05.1993, has allowed the appeal and relegated the parties before the Consolidation Officer to get the matter decided afresh. In pursuance of the order dated 19.05.1993 passed by Settlement Officer of Consolidation, objection under Section 9 -A (2) of U.P.C.H. Act filed on behalf of the present petitioner has been reconsidered and allowed by order dated 25.04.2022 passed by Consolidation Officer, consequently, previous order dated 08.12.1986 passed by the Assistant Consolidation Officer was affirmed. Thus, 2/3rd share of the property remains with the petitioner and remaining 1/3rd share with Bhagwandei. Having been aggrieved with the order dated 25.04.2022 passed by Consolidation Officer, respondent no.4 has preferred appeal. However, in the meantime, Smt. Bhagwandei had died, therefore, proceeding under Section 12 of U.P.C.H. Act has been instituted on behalf of the present petitioner and same has been decided by separate order dated 25.04.2022 passed by Consolidation Officer acknowledging the right and title of respondent no.4 over the 1/3rd share of Smt. Bhagwandei. However, in the meantime, Smt. Bhagwandei had died, therefore, proceeding under Section 12 of U.P.C.H. Act has been instituted on behalf of the present petitioner and same has been decided by separate order dated 25.04.2022 passed by Consolidation Officer acknowledging the right and title of respondent no.4 over the 1/3rd share of Smt. Bhagwandei. Present petitioner, however, has preferred separate appeal against the order dated 25.04.2022 passed in Case No.14/19/18/21/22 under Section 9 -A (2) of U.P.C.H. Act by which previous order dated 08.12.1986 passed by Assistant Consolidation Officer was affirmed. During pendency of the appeal present petitioner has moved an amendment application dated 30.12.2022 to amend the grounds of appeal. Settlement Officer of Consolidation, vide order dated 23.03.2023, has dismissed amendment application. Deputy Director of Consolidation, on revision being filed on behalf of the petitioner, has dismissed the revision and affirmed the order passed by Settlement Officer of Consolidation, which are under challenge before this Court. 4. Having considered the rival submissions as advanced by learned counsel for the parties and perusal of record, it is manifested that despite the order dated 25.04.2022 having been passed by Consolidation Officer in Case No.14/19/18/21/22 under Section 9 - A (2) of U.P.C.H. Act in favour of the present petitioner, he has preferred appeal assailing the said order dated 25.05.2022. During pendency of appeal petitioner has filed two separate applications dated 30.12.2022. One for amendment in memo of appeal and second for the permission to adduce additional evidence. Amendment has been sought for to add grounds qua genuineness of Will deed dated 12.06.1991 and questioning the parentage of respondent no.4 and, accordingly, petitioner has prayed for to examine the thumb impression of Smt. Bhagwandei and to conduct a D.N.A. test of respondent no.4. Precisely, present petitioner has sought for following relief: (i) Genuineness of thumb impression of Bhagwandei marked on the Will deed dated 12.06.1991 may be compared and examined with her thumb impression on the sale deed dated 02.05.1975 by handwriting and fingerprint expert. (ii) D.N.A. test of respondent no.4 may be conducted to ascertain her biological parents being a daughter of Ajudhya Prasad and Smt. Bhagwandei. (iii) Fresh opportunity may be given to the appellant for adducing additional evidence. 5. Perusal of record reveals that appeal preferred by the petitioner is arising out of proceeding under Section 9 -A (2) of U.P.C.H. Act. (ii) D.N.A. test of respondent no.4 may be conducted to ascertain her biological parents being a daughter of Ajudhya Prasad and Smt. Bhagwandei. (iii) Fresh opportunity may be given to the appellant for adducing additional evidence. 5. Perusal of record reveals that appeal preferred by the petitioner is arising out of proceeding under Section 9 -A (2) of U.P.C.H. Act. In said proceeding, primafacie, in my opinion, there was no occasion for him to prove the genuineness of the Will deed dated 12.06.1991 said to have been executed by Bhagwandei. Order dated 25.04.2022, in fact, has been passed in favour of the present petitioner affirming the previous order dated 18.12.1986 by which proceeding under Section 9 -A (2) of U.P.C.H. Act was decided on the basis of the settlement took place between Bhagwandei and the petitioner. Thus, there was no contest between Bhagwandei and the petitioner in proceeding under Section 9 -A (2) of U.P.C.H. Act. Apart from that share of Bhagwandei was also not in question, inasmuch as, petitioner had readily accepted the 1/3rd share of Bhagwandei over the property in question and he was satisfied with the 2/3rd share which had been decided by previous order dated 08.12.1986 and affirmed by subsequent order dated 25.04.2022. Even assuming for the sake of argument that present petitioner has assailed the order dated 25.04.2022 passed under Section 9 -A(2) of U.P.C.H. Act to mitigate the ramification of order passed in proceeding under Section 12 of U.P.C.H. Act, which was instituted owing to death of Smt. Bhagwandei, the amendment as has been sought for by the petitioner at appellate stage is not sustainable in the eye of law. In order dated 25.04.2022 passed under Section 9 -A (2) of U.P.C.H. Act, no finding has been returned questioning the thumb impression of Bhagwandei over the Will deed dated 12.06.1991 executed by her and paternal relation of respondent no.4 with Ajudhya Prasad. Even otherwise, there is no justification, at appellate stage, to examine the thumb impression of the testator and the paternal relation of respondent no.4 through D.N.A. test. At appellate stage, appellant cannot be permitted to amend the grounds of appeal which goes to the roots of the case and creates a condition to reopen the case and second round litigation. Even otherwise, there is no justification, at appellate stage, to examine the thumb impression of the testator and the paternal relation of respondent no.4 through D.N.A. test. At appellate stage, appellant cannot be permitted to amend the grounds of appeal which goes to the roots of the case and creates a condition to reopen the case and second round litigation. Since beginning respondent no.4 came with the plea that she is the daughter of late Ajuydhya Prasad, however, petitioner had neither moved such application on the first occasion when matter remanded by Settlement Officer of Consolidation, vide order dated 19.05.1993, nor on the second occasion when matter was decided by Consolidation Officer vide order dated 25.04.2022. Significance of educational certificate of respondent no.4 viz. High School Certificate and Intermediate Certificate, as considered by Consolidation Officer, cannot be undermined by forcing her to undergo D.N.A. test. 6. Counsel for the petitioner has cited the case of A wadh Narayan and others vs. Deputy Director of Consolidation Mirzapur Camp at Gyanpur and others , decided on April 5, 1973 (U.R.C. page 252), with the submission that case should be considered in substance and undue importance should not be attached to the process. Facts of the cited case are not applicable in the instant matter, inasmuch as, the case of Awadh Narayan (supra) is arising out of title proceeding and question of amendment was not considered by the court concerned. Counsel for the petitioner has relied upon another judgement namely Mahila Ramkali Devi and others vs. Nandram (D) through LRs and others, AIR 2015 Supreme Court 2270 , and submits that the party cannot be refused just relief merely because of some mistakes, negligence, inadvertence or even infraction of rules of procedure. In my considered opinion, however, cited case of Mahila Ramkali Devi (supra) is not applicable in the instant matter. There is no case of the petitioner that due to some mistake, negligence or inadvertence he could not make proper plea before the first stage of litigation. Petitioner had full opportunity before the Consolidation Officer to move an appropriate application to get the thumb impression of testator of Will deed examined and to ascertain parentage of the respondent no.4. There is no case of the petitioner that due to some mistake, negligence or inadvertence he could not make proper plea before the first stage of litigation. Petitioner had full opportunity before the Consolidation Officer to move an appropriate application to get the thumb impression of testator of Will deed examined and to ascertain parentage of the respondent no.4. Considering the finding returned by Consolidation Officer, it would not be befitting to give any observation in this regard at this juncture inasmuch as right and title of the parties over the property in question is still subjudice in appeal filed by parties assailing the order passed by Consolidation Officer. Third cited case relied upon by learned counsel for the petitioner i.e. Smt. Rani Kusum vs. Smt. Kanchan Devi and others , AIR 2005 Supreme Court 3304 , is also of no avail in substantiating the submissions as advanced by him. Aforesaid cited case relates to the extension of time in filing of the written submissions which has no significant effect on the merits of the instant writ petition. Counsel for the petitioner has also relied upon the case of Ramai and others vs. Deputy Director of Consolidation, Basti and others , 1989 RD 248 , in the cited case amendment application moved by the petitioner to amend his objection under Section 9 of U.P.C.H. Act was rejected by the Consolidation Officer. Co-ordinate Bench of this Court has observed that petitioner sought for to add one additional ground to establish his claim over the plot in question, therefore, addition of one ground will not change the nature of claim put-forward by the petitioner. The facts and circumstances of the present case, however, are quite different from the facts and circumstances of the aforesaid cited case. In the instant matter amendment has been sought for in memo of appeal at appellate stage, despite the fact that at the initial stage during pendency of objection before the Consolidation Officer present petitioner had full opportunity to raise such plea which has been sought to be brought on record. At appellate stage, it would not be justifiable to permit the petitioner to fill up the lacuna and reopen trial to examine the biological parents of respondent no.4 by getting her D.N.A. test and examine the thumb impression of Bhagwasdei by handwriting and fingerprint expert. 7. At appellate stage, it would not be justifiable to permit the petitioner to fill up the lacuna and reopen trial to examine the biological parents of respondent no.4 by getting her D.N.A. test and examine the thumb impression of Bhagwasdei by handwriting and fingerprint expert. 7. In this conspectus, as above, I am of the considered opinion that the Settlement Officer of Consolidation has not committed any error in rejecting the amendment application moved by the petitioner, which has been affirmed by Deputy Director of Consolidation. There is no illegality, perversity or ambiguity in the order under challenge passed by the Settlement Officer of Consolidation and Deputy Director of Consolidation. There is nothing on the record to demonstrate as to how petitioner is prejudiced, or if there is any likelihood of causing miscarriage of justice to him, owing to the order impugned. 8. Resultantly, instant writ petition, being misconceived and devoid on merits, is dismissed with no order as to costs.