Heard Shri R. R. Upadhyaya, learned counsel for the petitioner, learned State Counsel as well as Shri R. K. Pandey, learned counsel appearing on behalf of opposite party no.4.
Facts in brief of the present case are that the controversy involved in the present case relates to the share in plot no.428, 441, 442, 443, 444, 463/1 and 453 which belongs to Smt. Nimra wife of Shri Ram Deen.
After the death of Smt. Nimra, consolidation proceedings started in the village Tikra, Pargana & Tahsil, Musafirkhana, District-Sultanpur. In the said proceedings, petitioners as well as respondent no.2 filed objections under Section 9-A (2) of the U.P. Consolidation of Holdings Act (hereinafter referred to as the Act) on the ground that they are co-sharers on the plot in question. In order to prove their claim, reliance has been placed by them on the pedigree as contained in para 5 of the writ petition reproduced as under:-
Aggrieved by the order dated 9.9.1982, opposite party no.2 filed an appeal before the Settlement Officer Consolidation, on the ground that Buddhu was not the son of Dukhchhor, hence he has no co-share in the land in question and also denied the pedigree on which reliance has been placed by the petitioners. By an order dated 15.9.1987, Settlement Officer Consolidation, dismissed the appeal preferred by opposite party no.2.
Order dated 15.9.1987 passed by Settlement Officer, Consolidation has been challenged by opposite party no.2 by filing a revision under Section 48 of the Act. The Deputy Director of Consolidation on the basis of pleadings and evidence on record and accepting the fact that Buddhu was the son of Dukhchhor on which reliance has been placed by the petitioner, held that after the death of Smt. Nimra wife of Shri Ram Deen the land in question will vest/come into the share of respondent no.2 as per the provisions provided under Section 171 of U.P. Zamindari Abolition and Land Reforms Act 1950 as Dhautali was alive when Smt. Nimra died and he is the real brother of Shri Ram Deen (deceased), husband of Smt. Nimra whereas Buddhu, the father of Algoo is the father of the petitioners/nephew of Smt. Nimra.
Revisional order dated 27.3.2008 (annexure no.3) passed by opposite party no.1/Deputy Director Consolidation, Sultanpur has been challenged in the present writ petition.
Shri R. R. Upadhyaya, learned counsel for the petitioner has argued that opposite party no.1/ Deputy Director Consolidation, Sultanpur has acted in the most arbitrary manner thereby holding that after the death of Smt. Nimra of the land in question in view of the Section 171 of U.P. Zamindari Abolition and Land Reforms Act came into the share of respondent no.2, thus, while doing so he carved out a new case which has never been pleaded before the Settlement Officer, Consolidation as before the said authority the matter was under consideration as to whether the pedigree on which reliance has been placed by the petitioner that they are entitled to ½ share in the land in dispute which belonged to Smt. Nimra is correct or not. The said authorities on the basis of pleadings i.e. pedigree on which reliance has been place by the petitioner, held that they have got half of the share in the land in dispute, thus, the impugned order dated 27.3.2008 passed by opposite party no.1 is beyond scope of Section 48 of the Act, as the said authority has no power to interfere in the findings recorded by the Consolidation Officer and Settlement Officer, Consolidation, in this regard he had placed reliance on the judgment of this Court in the case of Uma Shankar Vs. Deputy Director Consolidation and Ors. 1999 (90) RD 555 .
Next argument advanced by learned counsel for the petitioner that in the mutation case filed after the death of Smt. Nimra under Section 34 of the Land Revenue Act, 1904, opposite party no.2 has admitted that the petitioners have got 1/2 share in the property in question, so in view of the Principle of Estoppel as contained in Section 115 of Indian Evidence Act, 1872 respondent cannot take the plea that the petitioners are not entitled for 1/2 share in the property of Smt. Nimra (dead). Hence, the order passed by opposite party no.1/Deputy Director of Consolidation is illegal and arbitrary in nature, liable to be set aside.
Learned counsel appearing on behalf of respondent no.2 submits that the order dated 27.3.2008 passed by opposite party no.1 is perfectly valid, because in view of the provisions as provided under Section 171 of Zamindari Abolition and Land Reforms Act, after the death of Smt. Nimra wife of Shri Ram Deen the property in question will vest as per the law of succession being ancestral property in favour of Sri Suraj Deen S/O Dhautali and not in favour of the Algoo, the father of the petitioner and nephew of Smt. Nirma, so respondent no.1 has not committed any illegality in passing the order under challenge in view of the provisions as provided under Section 48 (3) of the U.P. Consolidation of Holdings Act, writ petition liable to be dismissed.
The first question which arises for consideration is to whether under Section 48 of the Act, the Deputy Director of Consolidation in exercise of his powers of revision, can upset the findings recorded by the Consolidation Officer and the Settlement Officer.
Section 48 of the Act was amended by amendment Act 8 of 1963. Before its amendment Section 48 read as under:
"48. The Director of Consolidation may call for the record of any case if the officer (other than the Arbitrator) by whom the case was decided appears to have exercised a jurisdiction not vested in him by law or to have failed to exercise jurisdiction so vested, or to have acted in the exercise of his jurisdiction illegally or with substantial irregularity and may pass such orders in the case, as it thinks fit."
Thereafter as stated above Section 48 has been amended by U.P. Act No.8 of 1963 and after amendment the Section 48 (1) reads as under:-
"It is clear that the Director had power to satisfy himself as to the legality of the proceedings or as to the correctness of the proceedings or correctness, legality or propriety of any order other than interlocutory order passed by the authorities under the Act. But in considering the correctness, legality or propriety of the order or correctness of the proceedings or regularity thereof it cannot assume to itself the jurisdiction of the original authority as a fact-finding authority by appreciating for itself of those facts de novo. It ha to consider whether the legally admissible evidence had not been considered by the authorities in recording a finding of fact or law or the conclusion reached by its is based on no evidence, any patent illegality or impropriety had been committed or there was any procedural irregularity, which goes to the root of the matter, had been committed in recording the order or finding."
By U.P. Act No.20 of 1982 (w.e.f. 10.11.1980), the following explanation has been inserted after sub-section 3 of Section 48 of the Act :-
"Explanation - [1] For the purpose of this section, Settlement Officers, Consolidation, Consolidation Officers, Assistant Consolidation Officers, Consolidator and Consolidation Lekhpals shall be subordinate to the Director of Consolidation."
Thereafter by U.P. Act No. 3 of 2002 (w.e.f. 10.11.1980), the following explanation has been inserted after sub-section 3 of Section 48 of the Act :-
"Explanation - [3] The power under this section to examine the correctness, legality or propriety of any order includes the power to examine any finding, whether of fact or law, recorded by any subordinate authority, and also includes the power to re-appreciate any oral or documentary evidence."
In the case of Sheo Nand Vs. Dy. Director of Consolidation, Allahabad & Ors. 1991 RD (SC) 213, Honble the Supreme Court has dealt with Section 48 (1) as amended in the year 1963 held as under:-
"The Section gives very wide powers to the Deputy Director. It enables him either suo-motu on his own motion or on the application of any person to consider the propriety, legality, regularity and correctness of all the proceedings held under the Act and to pass appropriate orders. These powers have been conferred on the Deputy Director in the widest terms so that the claims of the parties under the Act may be effectively adjudicated upon and determined so as to confer finality to the rights of the parties and the Revenue Records may be prepared accordingly."
Again in the case of Ram Dular Vs. Dy. Director of Consolidation 1994 Supp. (2) SCC 198, it has been held as under:-
"It is clearly that the Director had power to satisfy himself as to the legality of the proceedings or as to the correctness of the proceedings or correctness, legality or propriety of any order other than interlocutory order passed by the authorities under the Act. But in considering the correctness, legality or propriety of the order or correctness of the proceedings or regularity thereof it cannot assume to itself the jurisdiction of the original authority as a fact-finding authority by appreciating for itself of those facts de novo. It has to consider whether the legally admissible evidence had not been considered by the authorities in recording a finding of fact or law or the conclusion reached by its is based on no evidence, any patent illegality or impropriety had been committed or there was any procedural irregularity, which goes to the root of the matter, had been committed in recording the order or finding."
In the case of Shesh Mani and Ors. Vs. Dy. Director of Consolidation, District Basti, U.P. and Ors. 2000 (18) LCD 602 Supreme Court, the scope of revisional jurisdiction under Section 48 (after 1963 amendment) came up for consideration before Hon'ble the Apex Court, wherein it has been held as under:-
"It is difficult to accept the contempt of the appellants. The Consolidation Officer as well as the Assistant Settlement Consolidation Officer had ignored the sales certificate in favour of Ram Khelawan, predecessor of the respondents. To base a claim on adverse possession, it is not enough to allege that one is in possession of the land. The ingredients of adverse possession were missing as these were not alleged nor taken into consideration. The Consolidation Officer as well as the Assistant Settlement Consolidation Officer proceeded on a wrong premise and against the settled principles of law. The Deputy Director, Consolidation, therefore, was well justified in exercising his power of revision and coming to a different conclusion. The writ petition was rightly dismissed by the High Court and so also the review petition of the appellants."
In the case of Ram Nath (dead) through legal LRs. Vs. Deputy Director of Consolidation, Jaunpur and another, 2005 (98) RD 570, this Court has held that while exercising the power of revision under Section 48 of the U.P. C. & H. Act, Deputy Director of Consolidation possesses the powers to give his own findings by assigning reasons contrary to the findings given by the court below.
Accordingly, in view of the above said proposition of law, the argument as raised by learned counsel for the petitioner on the basis of the judgment passed by this Court in the case of Uma Shankar (supra) wherein it has been held that Deputy Director of Consolidation should not interfere in the findings recorded by the court below i.e. Consolidation Officer and Settlement Consolidation Officer and the matter should be remanded to decide a fresh, is unsustainable, because as stated above the Deputy Director of Consolidation can give his own findings by assigning reasons contrary to the findings recorded by Consolidation Officer or Settlement Officer, Consolidation. In the present case, the Deputy Director of Consolidation while giving the judgment in question dated 27.3.2008 recorded the following findings thereby setting aside the finding recorded by the court below, the same is reproduced herein below :-
"इस प्रकार यधपि दोनों की वंशावली अलग अलग है किन्तु इस वाद में अवर न्यायालय से इस विन्दु पर अवधारणा किये जाने की अपेक्षा थी की नीमरा पत्नी रामदीन के मरने के पश्चात भूमि का उत्तराधिकारी धतौली पुत्र टुकछोर को प्राप्त होगा अथवा अलगू पुत्र बुद्धू को भी प्राप्त होगा I यदि यह मान भी लिया जाए की अलगू बुद्धू का लड़का है एवं बुद्धू टुकछोर का लड़का है तब भी तत्समय प्रचलित विधि के अनुसार नयायालय को इस विन्दु पर विचार करना चाहिए था की भाई के जीवित रहते भतीजे का हक़ विधि के अनुसार बनता है या नहीं ? क्योकि नीमरा की मृत्यु के पश्चात विधि के अनुसार संपत्ति रामदीन को जाएगी और रामदीन का उत्तराधिकारी उत्तर प्रदेश जमीदारी विनाश अधिनियम की धरा १७१ के अनुसार क्रम से उत्तराधिकारी प्राप्त होगा I "
Moreover, the said finding is also perfectly valid as admittedly in the present case after the death of Smt. Nimra wife of Shri Ram Deen, Buddhu, the son of Dukhchhor is not alive, whereas Dhautali, the son of Buddhu is alive who is the real brother of late Shri Ram Deen (deceased) husband of Smt. Nimra, thus as per the provisions provided under Section 171 of Zamindari Abolition and Land Reforms Act, the property will vest in favour of the Dhautali, thereafter Shri Surya Deen being his son. Thus, the finding has been given by the Deputy Director of Consolidation while passing the impugned order dated 27.3.2008 taking into consideration the provisions of Section 141 of the Act is perfectly valid and needs no interference by this Court while exercising the power of judicial review under Article 226 of the Constitution of India.
So far as argument advanced by learned counsel for the petitioner that after the death of Smt. Nimra, an application under Section 34 of the Land Revenue Act, 2004 was moved in which it has been shown that after the death of Smt. Nimra the property in question will vest in the name of Dhatauli and Surya Deen is not correct because in the said proceedings, competent authority/ Nayab Tehsildar passed an order dated 7.7.1962 in Regular Suit No.56/104, relevant portion quoted as under:-
"खाता खतौनी ६४ १३६९ के श्रीमती नीमरा मृतक का नाम ख़ारिज करके धौताली पुत्र दुखछोर का नाम बरासतन दर्ज किया जावे I मिसिल दाखिल दफ्तर हो I"
As stated herein above, the Deputy Director of Consolidation on the basis of material and evidence on record and after hearing learned counsel for the parties has held that in view of the provisions as provided under Section 171 of U.P. Zamindari Abolition and Land Reforms Act , after the death of Smt. Nimra, the property vested in the name of father of respondent no.4 i.e. Dhatauli who is alive at that time and not in favour of Alagoo i.e. father of the present petitioner because at that relevant point of time the father of Alagoo Shri Buddhu who was brother of Ram Deen (deceased) husband of Smt. Nimra was not alive, so in view of the said fact, the argument advanced by learned counsel for the petitioner that in the mutation case filed after the death of Smt. Nimra under Section 34 of the Land Revenue Act, opposite party no.2 has admitted that the petitioners have got one and half share in the property in question, hence, in view of the Principle of Estoppel as contained in Section 115 of Indian Evidence Act, 1872, petitioners are entitled one and half share in the property of Smt. Nimra (dead), is also misconceived as in the proceeding under Section 34 of the Land Revenue Act, the competent authority had recorded a finding in the judgment and order dated 17.7.2012 that after the death of Smt. Nimra, the property in question will vest in the name of Dhatauli, son of Dukhchor. So, keeping in view the said fact as well as settled propositions of law that there is no estoppel against statute the argument in question is misconceived, rejected (See Privy Council in Ariff vs. Jadunath Majumdar, 58 IA 91=AIR 1931 PC 79, Kisto Chandra Mandal and others vs. Mt. Anila Bala Dasi and others AIR 1968 Patna 487 and Ram Charan Das Vs. Girja Nandini Devi AIR 1966 SC 323).
For the foregoing reasons, the writ petition lacks merit and is dismissed.
Order Date :-8.8.2012 Mahesh