Shiv Pujan vs Deputy Director of Consolidation, Siddharth Nagar and Others

Janardan Sahai, J.—In the basic year Bashishtha Muni was recorded as a tenureholder. An application under Section 12 of the U.P. Consolidation of Holdings Act was filed by the petitioner Shiv Pujan claiming that Bashishtha Muni was his father''s brother and that Bashishtha Muni died issueless and thereafter the petitioner has succeeded to the disputed land. An order for mutation in favour of the petitioner was passed by the Assistant Consolidation Officer on 25.2.1977 treating it as an uncontested case. After several years a revision was filed by one person claiming to be Bashishtha Muni, respondent No.2 alleging that the order of the Assistant Consolidation Officer was obtained by the petitioner by fraud. In support of his case the respondent No.2 filed certain papers, which have been referred to in the order of the Deputy Director of Consolidation impugned in this writ petition. The papers filed were Sewa Praman Patra (certificate of service) and Bhoot Purva Sainik Praman Patra (Exserviceman certificate). On the basis of these papers and on the basis that he himself was present before the Deputy Director of Consolidation, the Deputy Director of Consolidation has allowed the revision of respondent No.2 with the finding that the petitioner had committed fraud and Bashishtha Muni was in army service and is still alive. Aggrieved by the order of the Deputy Director of Consolidation, the petitioner has filed this writ petition.

I have heard Sri R.S. Maurya, Counsel for the petitioner and Sri Ravindra Nath Rai, Counsel for respondent No.2.

The respondent No.2 has filed a copy of certificate of service contained in AnnexureCA6 to the counteraffidavit. This certificate relates to Bashishtha Prasad son of Chattar Pal. A copy of the photo identity card issued by the Election Commission of India has also been filed in which Bashitha Prasad is shown as son of Chattar Pal. On the basis of these papers it is contended by the Counsel for the petitioner that respondent No.2 was not Bashishtha Muni and in fact he is Bashishtha Prasad, son of Chattar Pal. On the other hand it is contended by Counsel for respondent No.2 that the Deputy Director of Consolidation has recorded a finding that Bashishtha Muni is still alive. It is also submitted that the order passed by the Assistant Consolidation Officer is an ex parte one without opportunity to lead oral evidence.

The question as to whether respondent No.2 was really Bashishtha Muni or a different person Bashishtha Prasad is a question of fact. This question can be decided only on the basis of evidence including oral evidence for which purpose parties ought to have been allowed opportunity. The finding, which the Deputy Director of Consolidation has recorded, is based on certain papers, which were filed before him by respondent No.2. There was no oral evidence and if the Deputy Director of Consolidation was on the basis of papers filed before him of the opinion that the order of mutation has been fraudulently obtained by the petitioner, the matter ought to have been sent back to the Consolidation Officer for a decision on merits after giving opportunity to the parties to lead evidence.

From the facts it appears that there is a dispute as to whether respondent No.2 is the real Bashishtha Muni or not. For that purpose the matter has to go back. The order of the Deputy Director of Consolidation dated 5.5.1993 is set aside to the extent to which he has recorded a finding that respondent No.2 is Bashishtha Muni. However, the order of the Deputy Director of Consolidation setting aside the order of the Assistant Consolidation Officer is maintained. Counsel for respondent No.2 states that he will file objections to the application under Section 12 of the U.P. Consolidation of Holdings Act within a month from today. The case is sent to the Consolidation Officer who shall decide the matter after taking evidence. The Consolidation Officer shall try to dispose of the case expeditiously and if possible within a period of six months. Counsel for the parties state that they will not take unnecessary adjournment. The writ petition is partly allowed.

(Petition partly allowed)