Matter is taken in revised cause list.
None appeared on behalf of the contesting respondents.
Heard Sri Umesh Kumar Srivastava, learned counsel for the petitioners as well as learned State Counsel and perused the record.
The controversy in the present case relates to Khata No. 333 situated in village Salempur, pargana and Tehsil Mohanlal Ganj, District Lucknow. In order to decide the controversy involved, it is necessary to go through the pedigree which is quoted as under:-
Bakhtawar |
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Before Consolidation Officer , Lucknow, on the basis of objection filed under Section 9 of the U.P. Consolidation & Holding Act, a case has been registered (Suit No. 120/690/7133, Pram Chandra and others Vs. Basant and others) where rival claims have been set up in respect to the property in dispute by Sri Prem Chandra, Sri Kallu and Sri Lakhan (petitioners), they are the sons of Shiv Charan son of Deena and the other claim has been set up by the contesting respondent that Shiv Charan is the son of Sri Hubba.
In order to prove their version , parties have filed documentary evidence. Petitioners in order to prove their case filed voter list and the contesting respondents filed Kutumb Register. Consolidation Officer by judgment and order dated 29.10.1991 held that petitioners are the son of Shiv Charan and ordered that their names be recorded as owner in Khata No. 333 alongwith other owners. While doing so, the Consolidation Officer dis-believed the Kutumb Register filed by the contesting respondents on the ground that the same is said to be a foraged documents by the petitioners.
Aggrieved by the said order, contesting respondents filed an appeal ( Appeal No. 1216/1120/904/781/661/177/117, 'Basant and others Vs. Pram Chandra and others') before the Settlement Officer Consolidation , Lucknow , dismissed by order dated 27.2.2004.
Thereafter , the contesting respondents filed a revision (Revision No. 248, Manohar and others Vs. Prem Chanra and others ) before Deputy Director of Consolidation Unnao Camp, Lucknow under Section 48 of the Consolidation Act, allowed by order dated 28.4.2006 ( Annexure no.1) by which the orders passed by Settlement Officer Consolidation as well as the Consolidation Officer were set aside and the matter was remanded to the Consolidation Officer to decide afresh after framing the issue that whether Shiv Charan is the son of Sri Deena or the son of Sri Hubba.
Sri Umesh Chandra Srivastava, learned counsel for the petitioners, in brief, has challenged the impugned order dated 28..4.2006 passed by the opposite party no.1/ Deputy Director of Consolidation Unnao Camp, Lucknow on the ground that the said authority has erred in law in remanding the matter to the Consolidation Officer. As the point in dispute in the matter in question has been agitated by the parties by leading documentary and oral evidence before the the Consolidation Officer as well as Settlement Officer Consolidation which is on record, the opposite party no.1 should have considered and decided the matter himself and should not have remanded the matter to the Consolidation officer thus, the said exercise on his part is unwarranted by law. He further submits that as per the judgment and order dated 15.5.2010 passed by Additional District Magistrate / Assistant Collector ( First Class) Mohanlal Ganj, Lucknow in Case no. 16 /09-10 ( Malhe Vs. Prem Chandra and others) under Section 210 of the Land Acquisition Act, it is evident that Shiv Charan is son of Hubba, who died issue less, so the matter is to be decided by Deputy Director of Consolidation and the same shall not be remanded to the Consolidation Officer. In order to support his arguments , he placed reliance on the judgment given by Hon'ble the Apex Court in the case of Ashwin Kumar K. Patel Vs. Upendra J. Patel and others (1999)3 Supreme Court Cases , 161.
I have heard the learned counsel for the petitioners as well as the learned State Counsel and gone through the record.
Sri U.K. Srivastava, learned counsel for the petitioners has very fairly admitted that when the judgment and order dated 28..4.2006 ( Annexure no.1) has been passed by opposite party no.1/ Deputy Director of Consolidation Unnao Camp, Lucknow, the order dated 15.5.2010 passed by Additional District Magistrate / Assistant Collector ( First Class) Mohanlal Ganj, Lucknow in Case no. 16 /09-10 ( Malhe Vs. Prem Chandra and others) under Section 210 of the Land Acquisition Act was not on record.
In the case of Ashwin Kumar K. Patel (supra) Hon'ble the Apex Court has held that if the material piece of evidence is before the High Court then in that circumstances High Court is not justified to remand the mater to the trial court to decide afresh. Relevant portion of the said judgment is reproduced as under:-
" Para-8:In our view, the High Court should not ordinarily remand a case under Order 41 Rule 23 CPC to the lower court merely because it considered that the reasoning of the lower court in some respects was wrong. Such remand orders lead to unnecessary delays and cause prejudice to the parties to the case. When the material was available before the High Court, it should have itself decided the appeal one way or the other. It could have considered the various aspects of the case mentioned in the order of the trial court and considered whether the order of the trial court ought to be confirmed or reserved or modified. It could have easily considered the documents and affidavits and decided about the prima facie case on the material available . In matters involving agreements of 1980 ( and 1996) on the one hand and an agreement of 1991 on the other , as in this case, such remand orders would lead to further delay and uncertainly. We are, therefore, of the view that the remand by the High Court was not necessary."
Thus, as per the said judgment given by Hon'ble the Apex Court , the position which emerge out is that Hon'ble Supreme Court set aside the order passed by High Court thereby remanding the matter to the trial court to decide when the material piece of evidence was before High Court, then it should not remand the matter to the trial court, whereas admittedly in the present case , the evidence/ material ( judgment dated 15.5.2010) passed in the proceedings arising under Section 210 of the Land Revenue Act was not on record before opposite party no.1. So I am of the considered opinion that the petitioners cannot derive any benefit from the said judgment Ashwin Kumar K. Patel (supra) as the same is not applicable to the facts of the present case.
Further, the Deputy Director of Consolidation Unnao Camp, Lucknow while remanding the matter to Consolidation Officer has given a direction that the same be decided after framing an issue that whether Shiv Charan is son of Deena or Hubba . Hence, the case is still open before the said authority on the point in issue where the contesting parties ( petitioners and respondents )will have ample opportunity to prove their case by leading material evidence( oral and documentary ) in support of their version, as such I do not find any illegality or infirmity in the impugned order dated 28.4.2006 passed by opposite party no.1 / Deputy Director of Consolidation Unnao Camp, Lucknow .
No other points have been pressed or argued by the learned counsel for the petitioners.
For the foregoing reasons, the writ petition lacks merit and is dismissed.
However ,as prayed by Sri Umesh Kumar Srivastava, learned counsel for the petitioners and looking into the controversy involved in the present case , it is expected from the Consolidation Officer, Lucknow to decide the matter expeditiously after giving opportunity to the parties in accordance with law.
Order Date :- 19.9.2012 dk/