JUDGMENT Poonam Srivastava, J.
1. Heard Sri Ramendra Ashthana, learned Counsel for the petitioner and Sri P.K. Ashthana Advocate for the contesting respondents.
2. The dispute relates to Kliata No. 72 of village Mahwa, Pargana Bara, District Allahabad which was entered in the name of Nazim Husain as Sirdari holding. Admittedly, Ilahi was common ancestor of the petitioner and respondents. In CH Form 5-A Sadiq Husain, Nawab Husain, Mohammad Husain, Zakir Husain, Nawab Husain and Lftikhar Husain were shown as co-tenants. During commencement of the consolidation proceedings, Nazim Husain-respondent filed objection on the ground that his brother Saddiq Husain and Sadiq Husain were co-tenants but entries in respect of the petitioner No. 1, Nawab Husain, Mohd. Husain and Zakir Husain were disputed. Mohd. Husain and Zakir Husain did not file any objection. Thus the controversy remained between the petitioners and contesting respondents. The petitioners claimed co-tenancy right in the entire Kliata and alternatively also claimed their right on the basis of adverse possession. The petitioners examined themselves on oath and specifically admitted that they were in cultivatory possession since last 15-20 years and in support of their contention, extract of Khasra and Khatauni pertaining 1371 Fasli were tiled where the name of Nazir Husain, father of the petitioner No. 2 was entered in column No. 9 along with remark that they were in possession since 1367 Fasli and continued to be in possession. Extracts of Khatauni of 1377 Fasli to 1379 Fasli was also placed on record in support of the case that the petitioner No. 1, and husband of the petitioner No. 2 were entered along with Nazir Husain. The Consolidation Officer allowed the objection of the petitioners vide order dated 20.12.1976 and came to conclusion that the petitioners had Sirdari rights over the plot No. 295/2, 296/7/2, 355/2 and 360/2 on the basis of adverse possession. Two appeals were preferred before the Assistant Settlement Officer Consolidation which were decided by the appellate authority on 30.11.1978. The appeal filed by the petitioners was allowed and that of respondent No. 4 was dismissed. The Assistant Settlement Officer Consolidation came to the conclusion that the petitioners' possession established their co-tenancy and that the land belong to the common ancestor Ilahi Bux. Besides, revenue receipts were sufficient to establish that the petitioners paid 1/2 of the total land revenue. It was also concluded by the Assistant Settlement Officer Consolidation that the contesting respondents were unable to give exact area of the plots etc. A revision was preferred under Section 48 of the Act which was allowed vide order dated 10.4.1980 which is impugned in the instant writ petition.
3. I have perused the impugned order dated 10.4.1980 passed by the Deputy Director of Consolidation. The findings of the Assistant Settlement Officer Consolidation was set aside for the reason that none of the parties could file extract of Khatauni 1367 Fasli to 1369 Fasli and revenue receipts can not be connected with the land in dispute. Besides certain discrepancies in the oral evidence has been highlighted in the revision.
4. Having heard the respective counsel for the parties and gone through the counter and rejoinder affidavits, it is evident that both the claimants had filed their objections and two courts below gave categorical findings in favour of the petitioners. The said findings were not set aside by the revisional authority, on the contrary, the revisional court has carved out altogether a new case to the effect that the. petitioners' possession was not continuous but intermittent and can only be said to be permissive in nature. This was nobody's case. In fact the Consolidation Officer had specifically stated on the basis of revenue entries as well as oral evidence that the possession of the petitioners was continuous and they perfected their right on the basis of the adverse possession. Besides, they were recorded as co-tenants at the commencement of the consolidation proceedings in certain plots. The "permissive possession" as held by the Deputy Director of Consolidation in exercise of revisional jurisdiction by re-appraising the oral evidence can not be left to stand. No doubt the revisional court has power to look into the factual aspects as well, after the amendment in the Act but only where the judgments of the two subordinate authorities are perverse and propriety of law, requires an interference. Nothing has been said by the revisional court. Learned Counsel for the contesting respondents has not been able to point out that the documentary evidence coupled with the oral evidence are sufficient to establish the claim of the petitioners. The findings of Consolidation Officer and Assistant Settlement Officer Consolidation could not be reversed without assigning any specific reason by the Deputy Director of Consolidation. In the case of Indra Pal Pandey v. Deputy Director of Consolidation and Ors. 2004(97) R.D. Page 226, this Court quashed the order of the Deputy Director of Consolidation since judicial requirement was not fulfilled. The manner in which the Deputy Director of Consolidation has reversed the findings of the Settlement Officer Consolidation and the Consolidation Officer can by no stretch of imagination said to be a judicial exercise of his authority. Similar view was expressed in the case of Ram Sumer and Ors. v. Deputy Director of Consolidation, Azamgarh and Ors. 2002(93) R.D., 368 and Gaya Din through its L.Rs. v. Hanuman Prasad through its L.Rs. 2001 (92) R.D. 79 Supreme Court Paragraph 13 of the said decision is quoted below:
13. Thus, it is 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 are perverse in the sense that they are not supported by the evidence brought on record or they are against the law or where they suffer from the vice of procedural irregularity.
5. In the circumstances, the order dated 10.4.1980 passed by the Deputy Director of Consolidation, Allahabad is quashed. The writ petition is allowed. The matter is remanded to the Deputy Director of Consolidation for a fresh decision. He shall pass appropriate orders after hearing the respective parties afresh.