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Judgment
Vikram Nath, J.—This petition under Article 226 of the Constitution, has been filed for quashing of the judgment and order dated 26.11.1973 passed by the Deputy Director of Consolidation, Pratapgarh, in Revision No. 120, Ram Bali and Ors. v. Dhanai and others whereby the revision filed by the Respondent Nos. 4 to 6 had been allowed and after setting aside the order passed by the Settlement Officer, Consolidation and the Consolidation Officer, the objections filed by the Petitioners u/s 9A(2) of the U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act) had been rejected. The dispute relates to Plot No. 101 and 146 situate in Village Kazipur, Pargana Rampur, Tehsil Kunda, district Pratapgarh (hereinafter referred to as the plots in dispute).
In the basic year plots in dispute were recorded in the names of Respondent Nos. 4 to 6. The Petitioners filed their objections claiming co-tenancy rights to the extent of 1/3rd share in the plots in dispute on the ground that the land in dispute was ancestral property; it was recorded in the name of Ram Harakh in representative capacity and as such he had no right to alienate the same in favour of Respondent Nos. 4 to 6.
The Respondent Nos. 4 to 6 contested the objections on the ground that the land in dispute was not ancestral and had been acquired by Ram Harakh and he had full rights to transfer the same in favour of the Respondents 4 to 6. It was further mentioned by the Respondent Nos. 4 to 6 that Ram Harakh was not the son of Bhunai. Small pedigree relevant for deciding the dispute as given by the Petitioners is as follows,
Bhunai ______________________I________________________ I I I Ram Harakh Gomti Payag ______I______ ____________I_____________ I I I I I Dhanai Gajadhar Ram Bali Mata Prasad Ram Nath
Both the parties led evidence, both oral and documentary. In the documentary evidence the plaint, written statement and the evidence of a suit u/s 229 B of the U.P. Act No. 1 of 1951 was filed by the Petitioners. The said suit had abated on the ground of commencement of the consolidation proceedings. The Consolidation Officer relied heavily upon the statement of Ram Harakh recorded before the Judicial Officer in which although he had denied that the land in dispute was ancestral and also it was stated that he was not the son of Bhunai but had admitted that Petitioners were in possession of the part of the area of plot Nos. 101 and 146. The Consolidation Officer vide judgment dated 30.12.1972 held that the land in dispute was ancestral and that Petitioners will have 1/3rd share over the same. Appeal filed by the Respondents Nos. 4 to 6 was dismissed by the Assistant Settlement Officer, Consolidation vide order dated 17.7.1973 basically relying upon the same material as had been relied upon by the Consolidation Officer. Respondents 4 to 6 filed revision u/s 48 of the Act which has been allowed and after setting aside the orders of both the courts below, the Deputy Director of Consolidation vide judgment dated 26.11.1973 dismissed the objections filed by the Petitioners and maintained the basic year entries. The Deputy Director of Consolidation considered the statement of Ram Harakh which was heavily relied upon by the courts below and according to the Deputy Director of Consolidation, Ram Harakh had specifically denied that the plots in dispute were coming down from the common ancestors; further that he was not the son of Bhunai; that he had himself acquired both the plots but at different points of time and his name had been accordingly incorporated; further that the land in dispute was never recorded in the name of Bhunai. Ram Harakh had however admitted that over a part of one of the two plots the Petitioners were in possession and further had constructed house over a part of the other plot. According to the Deputy Director of Consolidation mere statement of Ram Harakh that Petitioners were in possession over a part of the two plots would not make the land in dispute ancestral nor can it be inferred from the said statement that Ram Harakh had been recorded in the representative capacity, as Karta of the family. Further the Deputy Director of Consolidation also recorded that the Petitioners had not been able to show as to how the plots in dispute were ancestral. Plots in dispute were never recorded as Bhumidhari in the name of the alleged common ancestor of the Petitioners and the Respondents 4 to 6. The Deputy Director of Consolidation further recorded that just one receipt of land revenue which is said to have been paid by Bhunai, and not by the Petitioners, also goes to show that Bhunai may have paid the land revenue on behalf of the Respondent Nos. 4 to 6.
Aggrieved by the aforesaid judgment of the Deputy Director of Consolidation the present Writ Petition has been filed. Pleadings have been exchanged between the parties.
I have heard Sri M.A. Qadeer, learned Senior Advocate appearing for the Petitioners and Sri Sudhanshu Srivastava, Advocate appearing for the Respondents and have perused the material on record.
The main submission advanced by Sri Qadeer, learned Senior Advocate appearing for the Petitioners is that the Deputy Director of Consolidation while exercising revisional powers had no authority to re appreciate the evidence and record his own findings, different from those recorded by the courts below. According to him, the Deputy Director of Consolidation exceeded jurisdiction vested in him under law, as such the impugned judgment was not sustainable in law. Sri Qadeer has further relied upon the judgment of the Consolidation Officer and the Settlement Officer, Consolidation in an attempt to convince the Court that both the judgments were just, proper and legal, not warranting interference in revisional jurisdiction.
On the other hand Sri Sudhanshu Srivastava, learned Counsel appearing for the Respondents has submitted, firstly that it is by now well settled that the Deputy Director of Consolidation in exercise of the powers u/s 48 of the Act can reconsider the evidence and record his own findings. In support of his submissions he has relied upon a decision of the Apex Court in the case of Ram Dular Vs. Dy. Director of Consolidation, Jaunpur and Others, . In the circumstances it has been submitted that no error of law was committed by the Deputy Director of Consolidation in re-appreciating the evidence. Further it has been submitted that the Deputy Director of Consolidation rightly considered the statement of Ram Harakh and there was no illegality in the order. Sri Srivastava has further submitted that as there was no evidence to show that the plots in dispute were coming from common ancestors, the judgment of the Deputy Director of Consolidation is correct in law and does not suffer from any infirmity. He has further submitted that the Petitioners had utterly failed to prove their claim of co-tenancy and therefore, their objections had been rightly rejected. In support of this submission he has relied upon the following three decisions-
Nazim Husain and Others Vs. Deputy Director of Consolidation and Others, .
Tribhuwan Nath and Ors. v. Deputy Director of Consolidation, Faizabad and others, decided on October 4, 1983 (Writ Petition No. 927 of 1980 connected with Writ Petition No. 1687 of 1980).
Bala Charan and Ors. v. State of U.P. Through the Dy. Commissioner, Hardoi and others decided on May 11, 1976 (Writ Petition No. 1458 of 1970).
Having considered the submissions advanced in the opinion of the Court there are two questions to be considered in this case (i) Whether the Deputy Director in exercise of the revisional powers u/s 48 of the Act could appreciate the evidence and record his own findings? (ii) Whether there was enough material on record to establish that the land in dispute was ancestral?
With regard to the first question scope of the Section 48 of the Act conferring revisional powers on the Deputy Director of Consolidation have been interpreted over period of time in large number of cases. It has been consistently held that after the amendment of the Section 48 of the Act in 1963, the Deputy Director of Consolidation has been given unfettered powers. The Apex Court in the case of Gaya Din v. Hanuman Prasad reported in 2001 RD 79, after taking into consideration the previous decisions, on the question, laid down that the Deputy Director of Consolidation can very well interfere with the findings of the subordinate authority where they are found to be not supported by the evidence on record or that such evidence was against law or on the ground of procedural irregularity. It would be relevant to refer to paragraph Nos. 9, 10 & 13 of the report in the case of Gaya Din (supra) which reads as follows-
There can be no doubt that under amended Section 48 of the Consolidation Act, the revisional power of the Director of Consolidation is not confined to errors of jurisdiction as was the position under the unamended provision. The power of the revisional authority now extends to satisfying himself as to the regularity, correctness, legality or propriety of any order other than an interlocutory order. It is well settled that consequently the powers of a revisional authority, even if couched in wide language, cannot be equated with the powers of an appellate authority.
The scope of powers of the Deputy Director under the amended provision came up for consideration of this Court in Ram Dular Vs. Dy. Director of Consolidation, Jaunpur and Others, It was observed that in considering the correctness, legality or propriety of the order or correctness of the proceedings or regularity u/s 48 of the Consolidation Act, the Deputy Director of Consolidation could not assume the jurisdiction of the original authority as a fact-finding authority by appreciating for himself of those facts de novo: he had to consider whether the legally admissible evidence had been considered by the authorities in recording a finding of fact or law or the conclusion reached by them was based on evidence or any patent illegality or impropriety had been committed or there was an procedural irregularity which would go to the root of the matter. That judgment was relied on in a recent judgment of this Court in Seshmani and Anr. v. Deputy Director of Consolidation, District Basti, U.P. and Ors. reported in 2001 RD 210 (SC).
Thus, it was clear that notwithstanding the fact that Section 48 has been couched in wide terms, it only permits interference where the findings of the subordinate authority were perverse in the sense that they were not supported by the evidence brought on record or they are against the law or where they suffer from the vice of procedural irregularity.
The said decision has been relied upon with affirmance in large number of cases. Some of the recent cases being Ram Avadh and Others Vs. Ram Das and Others, , Kalloo v. Deputy Director of Consolidation, Basti reported in 2009 (106) RD 634.
In the present case the Deputy Director of Consolidation has discussed the evidence which had been relied upon by the subordinate authorities specially the statement of Ram Harakh which according to the Deputy Director has been incorrectly relied upon by the subordinate authorities. The subordinate authorities had tried to read something in the statement of Ram Harakh which was in fact not there. Ram Harakh had never stated that the land in dispute was ancestral. In fact he had specifically denied that the land in dispute was ancestral and had further alleged that the land in dispute had been acquired by him and it never belonged to Bhunai. The Deputy Director of Consolidation had accordingly interfered with the findings of the subordinate courts and such interference by correctly appreciating the evidence and all the more where it had been misinterpreted by the subordinate authorities, was well within his powers as provided u/s 48 of the Act and as held by the Apex Court and this Court in large number of cases. Thus the argument of Sri Qadeer that the Deputy Director of Consolidation exceeded his jurisdiction cannot be accepted and is accordingly rejected.
The next question is with regard to the material on record to establish that the land in dispute was ancestral as held by the Consolidation Officer and the Settlement Officer Consolidation. Apart from the statement of Ram Harakh and one land revenue receipt said to have been deposited by Dhanai there was no other material on record to indicate that the land in dispute was ancestral. To establish that the land in dispute was coming from common ancestors it was essential to show that it was recorded in the name of common ancestors and thereafter it came to be recorded in the representative capacity. In the present case there was no evidence to show that the land in dispute was ever recorded in the name of any common ancestor and in particular Bhunai. The land in dispute came to be recorded in the name of Ram Harakh for the first time as claimed by him on the basis of acquisition having taken place in his own name. Merely because Ram Harakh was brother of Gomti & Payag would not go to show that Gomti or Payag or their sons would have any share in it treating the said property to be ancestral. Ram Harakh had himself deposed that it was his self acquired property and that he had transferred the same in favour of the sons of Payag as such Gomti or his sons would not get any right. The Deputy Director of Consolidation in such circumstances rightly came to the conclusion that there was no material on record to establish that the land in dispute was ancestral and that it was recorded in the name of Ram Harakh in representative capacity. The basic ingredients of establishing that the land in dispute would be ancestral are laid down in the cases of Bala Charan, Tribhuwan Nath and Nazim Husain (supra). The following extract from para 8 of the report in the case of Nazim Husain (supra) is relevant for the present.
8........... Thus, it is to be seen that whether any land which was recorded for the first time in the name of one branch, whether the other branch, on account of joint entry over that plot in subsequent year can claim and given co-tenancy rights, if other branch objects to it. Here it is to be observed that although party belongs to Muslim community but even in respect to Hindu family, law is settled that there is presumption about joint Hindu family but not against joint Hindu family property. Unless land is coming down from time of common ancestor, it has to be proved by the branch who was not initially recorded that how and in what manner the entry in the name of other branch also came for the first time. How and in what manner land was acquired for the benefit of joint family and whether with the aid of joint family fund.....
In the present case there is no such evidence which could lead to one and only conclusion that the land in dispute was ancestral. In fact the evidence led clearly established that the land in dispute could not be held to be ancestral.
In view of the above discussion the judgment of the Deputy Director of Consolidation does not warrant any interference as he has rightly held that the claim of co-tenancy had not been proved.
Accordingly I do not find any infirmity in the impugned order of the Deputy Director of Consolidation dated 26.11.1973, warranting interference in writ jurisdiction.
Petition being devoid of merit is accordingly dismissed.
There shall however be no order as to costs.