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Judgment
Alok Singh, J.—Heard Mr. Sudhir Kumar, learned Counsel for the petitioners.
Since all the writ petitions are filed against the judgment dated 29.08.2009 passed by Deputy Director of Consolidation, Haridar and the controversy involved in all the writ petitions is same, consequently, with the consent of learned Counsel for the petitioners, all the writ petitions are being taken together for hearing and being decided by this judgment.
Present writ petitions are filed against the impugned order passed by DDC dated 29.08.2009 by which learned Revisional Court - Deputy Director of Consolidation, Hardwar, remanded the matter to the consolidation officer with the direction that Consolidation Officer shall decide the matter within three months after giving opportunity to lead fresh evidence and hearing.
In the impugned order learned Revisional Court has also observed that Trial Court''s file is not available. Mr. Sudhir Kumar, learned Counsel for the petitioner states that in fact file of the Trial Court is missing.
Present consolidation proceedings commenced on the application of the petitioners moved before the Trial Court claiming title over the land in dispute saying Smt. Shanti Sharif was the Bhumidhar and petitioners have matured their title by way of adverse possession. Learned Consolidation Officer allowed the claim of the petitioners against which appeal was filed and ultimately in revision matter was remanded by the impugned order.
The case taken by the Gaon Sabha is that Smt. Shanti Sharif died issueless and as per provisions of Section 189 read with Section 194 of U.P. Zamindari Abolition and Land Reforms Act, 1950 on the death of Bhumidhar issueless land stands vested in the Land Management Committee (Gaon Sabha). It is stated that in the present case Smt. Shanti Sharif had died issueless much prior to the order passed by Trial Court, hence, there could be no declaration in favour of the petitioners. No claim of adverse possession can be entertained over the land belonging to State / Gaon Sabha under the provisions of U.P. Zamindari Abolition and Land Reforms Act, 1950.
It is also admitted to the petitioner''s counsel that Shanti Sharif had died issueless. It is also contended by Mr. Sudhir Kumar that date of death of Smt. Shanti Sharif is not known. He has further stated that he is not in a position to tell the Court what is the actual date of death of Smt. Shanti Sharif.
Mr. Sudhir Kumar, learned Counsel for the petitioners argued that appeal as well as revision filed by Goan Sabha through DGC were not maintainable, hence, impugned order must be set aside.
Section 48 of the U.P. Consolidation of Holdings Act, 1953 reads as under:
Revision and reference: - (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 interlocutory order] passed by such authority in the case of proceedings and may after, allowing the parties concerned an opportunity of being heard, make such order in the case proceedings as he thinks fit.
(2) Powers under Sub-section (1) may be exercise by the Director of Consolidation also on a reference under Sub-section (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).
From perusal of the Section 48 of the Act 1953 it can safely be held that Revisional court for the satisfaction of himself irrespective of the fact that revision is maintainable or not can call for record of the court below and decide the case. In other words, Revisional Court has suo moto powers to call the record of the court''s below and can see the legality, propriety of the orders passed by the courts below.
This is exactly happened in the present case where Deputy Director of Consolidation seems to have exercised his jurisdiction in the revision suo moto. It can safely be said that although ordinarily District Government Counsel should not invoke revisional power, however, if on the pointing of DGC Revisional court calls the record and finds jurisdicational error, illegality and impropriety in the orders passed by courts below, revisional court can always pass appropriate order.
Record of the Trial court is missing. Date of death of Recorded tenure holder (Bhumidhar) Smt. Shanti Sharif is not known to both the parties. If it is found that Smt. Shanti Sharif died issueless then land in question shall vest in the Gaon Sabha and in that event petitioner cannot claim adverse possession over the land.
Remand seems to be justified in peculiar facts and circumstances of the present case. Hence, no interference is called for. Present petitions are liable to be dismissed summarily. All the writ petitions are dismissed summarily.
However, it is made clear that Trial Court shall reconstruct the file with the help of both the parties and while deciding the case, the Consolidation Officer shall also record his finding on the question as the whether Mrs. Shanti Sharif died issueless? As to whether, petitioners have any right or title on the basis of adverse possession over the land as claimed by the petitioners?