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Judgment
S.K. Singh, J.—Heard Sri Gulrez Khan, learned advocate in support of this petition and Sri Satya Prakash; learned advocate who appeared for the respondents.
Proceedings are under section 9A (2) of UPCH Act which is in respect to adjudication of dispute of title/right between the parties.
To appreciate claim of parties and then to take appropriate decision, in the light of findings so recorded, notice of the facts in brief will suffice.
When the proceedings started, initially, dispute related to land comprised in Khata Nos. 4, 42 and 21 but as Sri Khan, learned Counsel submits that now dispute confines to the land comprised in Khata Nos. 4 and 42, this Court is to examine the same. Over the land which is in dispute in the present writ petition, as noted above, name of Ganga Devi wife of Hari Singh Thakur, was recorded. There happens to be an order of Assistant Consolidation Officer dated 13.11.1972, directing for exjunction of the name of Ganga Devi and for recording name of respondent No. 4 (Smt. Kalawati) but in view of further development and proceedings as progressed, now we are to forget that as nobody pursue it. On 5.3.1973, an objection was filed by Risal Singh claiming succession after death of Ganga Devi, obviously under section 171 of UPZA&LR Act. Consolidation Officer rejected objection. Appeal filed by respondents was allowed and the matter was remanded, upon which the Consolidation Officer while taking fresh decision accepted Risal Singh to be successor/heir of deceased and claim of Kalawati was rejected. To challenge the judgment of Consolidation Officer, Kalawati and Nawal again came to the Appellate Court upon which, again the order of remand was passed. During pendency of matter before the Consolidation Officer on remand, Risal Singh and Nawal ''both died. Suraj Kali widow of Manraj claimed to succeed rights on account of Will dated 4.4.1973 which has not been accepted by the Courts and there is no challenge by that lady in respect to her rights now. Present petitioners claimed to succeed rights from Risal Singh on account of a registered Will dated 21.12.1974. Consolidation Officer by judgment dated 1.8.1977, gave certain directions in respect to land comprised in Khata No. 21. which we are now not to bother. So far as land of Khata Nos. 4 and 42 which is under scrutiny, name of respondent No. 4 was directed to be recorded in place of Gaga Devi. Two findings were given i.e. (i) Risal Singh was adopted in different family and thus has no right in the land in dispute (ii) land of Khata No. 21 was acquired by Ganga Devi and it was not ancestral. There were four appeals including that of petitioners and similarly on dismissal of appeal there were four revisions, including that of the petitioners and all were dismissed and thus, to challenge the orders of Deputy Director, Consolidation, appellate authority and that of the Consolidation Officer, petitioners have come up to this Court by means of present writ petition.
Submission of Sri Khan, learned counsel is very plain and simple. It is pointed out that, so far as Consolidation Officer is concerned, in his judgment there is absolutely ho mention at the place where relevant findings about nature of acquisition and about rights of parties has been given, in respect to Khata Nos. 4 and 42 and in fact, Khatauni extract of 1339 Fasli which has been referred by appellate authority and the Revisional Court has not been noticed. Submission is that although in 1349 Fasli, as the findings of appellate authority and Revisional Court goes, name of Ganga Devi is recorded with six years duration but at the same time, there happens to be a finding of both Courts, the Settlement Officer, Consolidation and the Deputy Director, Consolidation that from 1336 Fasli, it appears that Hari Singh had some right but later on in view of entry of 1349 Fasli, one is to wonder that how rights of Hari Singh came to an end and thus, submission is that Courts below only by placing reliance on khatauni of 1''349 Fasli, without taking any care, to address and to go slightly back to acquisition/nature of land, about right which was possessed by Hari Singh, have illegally negatived the petitioners'' claim. Argument is that detail finding was required to be recorded that how and in what circumstances, right of Hari Singh, if was there, came to an end and how and in what manner. Gaga Devi came to receive fresh right and whether that right can be accepted only on the basis of solitary entry of 1349 Fasli and aid can be taken on the basis of statement of Kalawati who is said to be an illiterate lady whose statement has not been believed in respect to part of statement. Submission is that it is a case where right is to be given to a party and therefore, some more serious attention will have to be given to the claim of parties by going into deep of evidence whatever is available on record and thus casual approach by all Courts to the matter in issue by putting even a question mark to the important/relevant aspect, decision so given is not to be approved by this Court. Submission is that so far adoption is concerned, there was no pleading from respondents'' side and a finding has been given against the petitioners only on the basis of statement of Risal Singh himself who just innocently said that he went to his Bua and she adopted him. Submission is that there is absolutely no evidence in any shape in respect to finding of adoption, although, giving and taking ceremony etc. may be required to be stated and proved. Argument is that on all these premises, as the claim of petitioners is to be accepted/rejected, the Deputy Director, Consolidation is required to give fresh attention in the matter.
Sri Satya Prakash, learned Counsel to oppose the aforesaid submission, submits that question of acquisition of land by Ganga Devi and the question of adoption of Risal Singh both are questions of fact and if all three Courts have concurred then, it may not be a case for interference in the writ exercise. Argument is that although, Settlement Officer, Consolidation and the Deputy Director, Consolidation have said in their judgment that it is not clear that, how flights of Hari Singh came to an end, but nothing was established from petitioners'' side and there was an entry of 1349 Fasli in the name of Ganga Devi and thus taking strength from the statement of Kalawati, if particular finding is recorded, then no exception can be taken. On the question of adoption, submission is that statement of Risal Singh can be accepted to be the best evidence and no further evidence of any kind, as submitted by petitioners'' side was required. Submission is that on these facts, writ petition merits dismissal.
In view of aforesaid, this Court has to decide claim of the parties.
There is no dispute about the fact that Consolidation Officer has not referred to Khatauni of 1339 Fasli as has been referred by appellate authority and the Revisional Court. Both two higher Courts have referred to the entry of 1339 Fasli, and made clear observation that right of Hari Singh came to an end, but at the same time, they themselves were not in a position to answer about the query that how rights came to end. Be as it may, there is no positive finding by either of the Courts that how and in what manner, Ganga Devi came to receive fresh right. Admittedly, Ganga Devi is widow of deceased Hari Singh. This being the situation, land being recorded in the name of Hari Singh or in the name of Ganga Devi at a such old time, more care was required to be taken by Courts to find out exact detail, in respect to either of the situation i.e. Coming to end the right of Hari Singh, if there was any, and to receive fresh right to Ganga Devi, if that was a fresh right. On the facts, this Court is convinced that in view of finding by the Settlement Officer and the Deputy Director, Consolidation, matter needs more proper and deeper scrutiny in respect to claim of parties, in the light of whatever evidence is available on record. Statement of Kalawati was there, in which somewhere as observed by Courts below, there was statement about land being ancestral but about that it has been said that she is an illiterate lady and thus a margin is to be given. If that is so, Courts were entitled to draw its own inference but at the same time, statement of Risal Singh who also happens to illiterate person of old days who just said about his going out of his family, is to be tested in respect to adoption by giving some kind of margin. Of course, both questions are questions of fact, but as the rights of parties are to depend on their clear answer that will also required to be answered carefully by the Courts below. The entries of 1349 Fasli and 1339 Fasli or if there is any other revenue extract, will have to be examined by the Courts below very carefully and full details will have to be stated in the judgments so that proper conclusion may be arrived at. Thus, on all these scores, this Court is convinced that remand of the matter for fresh decision will be in the ends of justice as question of succession is a question of law and that is to confer valuable rights of either of the sides. Thus the judgment of the Deputy Director, Consolidation will have to be interfered.
For the reasons given above, this petition succeeds and is allowed. Judgment of the Deputy Director, Consolidation is hereby quashed. Revisional Court is to revive the revision to its original number for fresh decision, in accordance with law, on the basis of whatever evidence is available on record, preferably within a period of four months from the date of presentation of a certified copy of this order by either of the sides.
It is to be made clear that any observation, if it has come in the judgment of this Court either in favour/against any party, that will not be binding on the Revisional Court and it will be his independent exercise.