Court No. - 17
Case :- WRIT - B No. - 4870 of 2018 Petitioner :- Radhey Raman And Another Respondent :- The Deputy Director Of Consolidation And 3 Others Counsel for Petitioner :- Adya Prasad Tewari,Sheo Shankar Tripathi Counsel for Respondent :- C.S.C.,Anup Kumar Srivastava,Sachida Nand Tripathi
Hon'ble Rajiv Joshi,J.
Heard Sri A. P. Tiwari, learned counsel for the petitioner and Sri S. N. Tripathi appearing on behalf of the respondent nos. 2 to 4.
The present writ petition has been filed for quashing the impugned order dated 28.05.2018 passed by the Deputy Director of Consolidation, Gorakhpur in Revision No. 669 of 2017-18.
The record reflects that the dispute is with regard to the agricultural land, which was purchased by Smt. Parma Shukla, Chandra Prakash and Radhey Raman vide registered sale deed dated 16.08.1979, executed by Suresh, Purushottam and Sugreeva son of Naresh Rai. Subsequently, on the basis of said sale deed, the name of the aforesaid persons were recorded in the revenue record.
During the consolidation operation the objection was filed by the petitioners under Section 9A (2) of the U.P. Consolidation and Holdings Act, 1953 (hereinafter referred to as the "Act") claiming 1/3rd share in the disputed property. It is further stated in the objection that Smt. Parma Shukla sold half share in favour of Satya Deo vide registered sale deed dated 03.01.1984. The objection of the petitioner was allowed vide order dated 14.12.2004 and the petitioner was declared to be the owner of 1/3rd share of the property. Against that order, an appeal was filed by the contesting respondents before the Settlement Officer Consolidation on the ground that no proper opportunity to lead the evidence has been given to them and no issue has been framed by the Consolidation Officer for deciding and determining the share of the parties and further when the sale deed was executed in favour of the Smt. Parma Shukla and the other persons namely Chandra Prakash and Radhey Raman, who were minors and in the sale deed it has not been mentioned, who was their guardian.
The appeal filed by the contesting respondents was dismissed vide order dated 23.09.2016 affirming the order passed by the Consolidation Officer. Against that order, the petitioners filed Revision No. 669 of 2017-18, which was allowed vide impugned order dated 28.05.2018 and matter was remanded to the Consolidation Officer with a direction to give opportunity to the parties to lead the evidence and thereafter the matter be decided. The order passed by the Deputy Director of Consolidation in revision is impugned in the writ petition.
The contention of the learned counsel for the petitioners is that there is no question for any remand and only the share on the basis of the sale deed has to be determined and further in the sale deed no share has been defined and, therefore, it means that all the persons in whose favour the sale deed has been executed, have 1/3rd share each.
It is further contended by the learned counsel for the petitioner that under Section 48 of U.P. Consolidation and Holdings Act, 1953, the revisional Court has power to re-appreciate the evidence and record the finding of its own. In support of his contention, the counsel for the petitioner has relied upon the judgment of this Court in Case of Jhandu Vs. D. D. C., Budaun and others (2014 (123) RD 176).
On the other hand, learned counsel for the respondents, Sri S. N. Tripathi submits that no proper opportunity had been given by the Consolidation Officer and even no issue had been framed with regard to determination of the share of the parties on the strength of the sale deed and further the question in the present case whether Smt. Parma Shukla who is the grand- mother (Nani) of the petitioner paid the entire sale consideration on behalf of the Chandra Prakash and Radhey Raman, who admittedly were minor at that time and for that purpose the contesting respondents has to adduce evidence and, therefore, the Deputy Director of Consolidation has not committed any illegality while remanding the matter to the Consolidation Officer.
I have considered the rival submissions of the parties and perused the record.
It is admitted by both the parties that sale deed has been executed in favour of Smt. Parma Shukla, Chandra Prakash and Radhey Raman and no specific share has been determined. It is also an admitted fact that Smt. Parma Shukla sold half share to Satya Deo vide registered sale deed dated 03.01.1984. The question arose whether Smt. Parma Shukla, the predecessor interest of the contesting respondents have half share or the 1/3rd share as claimed by the petitioner. It is also on the record that the order passed by the Consolidation Officer is without framing any issue with regard to the determination of the share. The objection filed under Section 9A (2) of the Act has to be decided on the basis of the evidence. The opportunity to lead the evidence of the contesting respondents has been closed by the Consolidation Officer and the order passed by the Consolidation Officer is an ex-parte order that was admitted by the parties and even the appellate authority mentioned the said fact in the impugned order. The Deputy Director of Consolidation has recorded the finding that when the sale deed was executed, Chandra Prakash and Radhey Raman were minors and it is not mentioned in the sale deed who is the guardian of the said persons and who paid the sale consideration and in these circumstances the finding recorded by the Deputy Director of Consolidation is quoted as under:-
“EkSuas mHk;i{kksa ds rdksZ dks lquk rFkk i=koyh dk lE;d voyksdu fd;k] ftllss ;g Li"V gS fd pdcUnh vf/kdkjh ds le{k eq[;:i ls fopkj.kh; fcUnq ;g Fkk fd fookfnr vkjkth esa i{kksa dk va'k D;k gSa fuxjkuhdrkZ ds firk ds i{k esa fu"ikfnr cSukek esa ijek'kqDy 1@2 va'k dk mYYks[k gSA la;qDr :i ls Hkwfe dz; fy, tkus dh fLFkfr esa okLrfod fLFkfr ijek'kqDy }kjk gh Li"V fd;k tk ldrk Fkk] fdUrq muds thoudky esa pUnzizdk'k oxSjg us cSukesa dh Hkwfe ds va'k ds ckor dksbZ iz'u ugha mBk;k x;k rFkk mudh e`R;q ds mijkUr muds dzsrk ls mDr ds ckor fookn mBk;k x;kA bruk gh ugha ;g Hkh Li"V gS fd ftl le; ijeknsoh us cSukek fy;k Fkk ml le; pUnzizdk'k o jk/ksje.k iq=x.k pUnznso ¼ukckfyx½ FksA cSukesa esa mudk laj{kd dkSu gS ;g Hkh mfYyf[kr ugha gSA ,sls esa muds izfrQy dh vknk;xh dkSu fd;kA ijek nsoh us ;fn lEiw.kZ Hkwfe dz; fd;k rks os gh csgrj tkurh Fkh fd mUgksusa fdruh Hkwfe dz; fd;kA ,sls esa izfrQy vknk;xh fdl fuf/k ls fd;k x;kA va'k fu/kkZj.k esa ,d vko';d rF; gS] ftl ij U;k;ky; us /;ku ugha fn;kA pwWfd mDr rF; dk ijh{k.k lk{; ds :i esa gh lEHko gS vkSj fuxjkuh drkZ dks lk{; iw.kZ djkus dk volj ugha feyk gSA i=koyh ds voyksdu ls ;g Hkh Li"V gS fd lR;nso dh e`R;q gks tkus ds mijkUr fuxjkuhdrkZ x.k dh mifLFkfr dk dksbZ rF; i=koyh esa miyC/k ugha gSA ,sls esa fdlh dks viuk i{k j[kus ls lk{; izLrqr djus ls oafpr fd;k tkuk fof/kd ekU;rkvksa ds izfrdwy gS D;kasfd mDr va'k dk fu/kkZj.k lk{; o ekSf[kd c;ku o ftjg vkfn ls gh Li"V fd;k tkuk fof/klaxr gksrk] fdUrq pdcUnh vf/kdkjh us fuxjkuhdrkZ dks lk{; o viuk i{k j[kus ls oafpr dj fn;k rFkk cUnkscLr vf/kdkjh pdcUnh us ,d rjQ rks ekuk fd vkns'k ,di{kh; gS fdUrq ;g Hkh dgk fd voj U;k;ky; esa vihydrkZ mifLFkr ugha Fks] lgh ugha gSA ;kuh mifLFkfr Hkh eku jgs gS] ugha Hkh eku jgs gSA tcfd i=koyh esa muds mifLFkfr dh dksbZ izkef.kdrk ugha gS tgkW rd foi{kh } kjk ;g dgk x;k fd vihyh; U;k;ky; esa i=koyh ryc gksus ij odkykrukek o lEeu fudky fy;k x;kA iw.kZr;k xyr gS D;ksafd vihy nk;j ds le; gh Lo;a dh tkudkjh u gksus dk mYys[k gS vkSj v/khuLFk U;k;ky; dh i=koyh vihy nk;j ds mijkUr gh vkrh gSA bl izdkj mijksDRk foospuk ds vk/kkj ij eSa bl fu"d"kZ ij igqWprk gwW fd cUnkscLr vf/kdjh pdcUnh dk vkns'k fnukad 23-9-16 o pdcUnh vf/kdkjh dk vkns'k fnukad 14-12-04 fujLr djds lk{;ksaijkUr i{kksa dks lquokbZ dk volj nsrs gq, xq.knks"k ij fuLrkj.k gsrq i=koyh pdcUnh vf/kdkjh ds le{k izR;kofrZr fd;k tkuk mfpr gSA rn~uqlkj fuxjkuh Lohdkj fd;s tkus ;ksX; gSA”
In the judgment as relied by the learned counsel for the petitioner in case of Jhandu (Supra) the remand order held to be unjustified in case the additional evidence is not required. The relevant portion of paragraph 10 and 11 of the said judgment is quoted as under:-
(10) "The practice of remand has been deprecated by Supreme Court time to time. Supreme Court in Municipal Corpn., Hyderabad v. Sunder Singh, held that it is now well settled that before invoking the provision of Order XLI, Rule 23 of the Code of Civil Procedure, the conditions precedent laid down therein must be satisfied. It is further well settled that the Court should loathe to exercise its power in terms of Order XLI, Rule 23 of the Code of Civil Procedure and an order of remand should not be passed routinely. It it not to be exercised by the Appellate Court only because it finds it difficult to deal with the entire matter. If it does not agree with the decision of the trial Court, it has to come with a proper finding of its own. The Appellate Court cannot shirk its duties."
(11) "Settlement Officer Consolidation found that marriage of Mohkam to Maya was proved. But as Maya was not examined to prove that Mithlesh Babu was her born due to bedlock with Mohkam as such, the matter was remanded for fresh trial. Mithlesh Babu examined Satyapal and Thakuri and filed his school record. On the basis of these evidence, the Consolidation Officer recorded findings that it was proved that Mithlesh Babu was legitimate son of Mohkam. In the circumstances, the remand was wholly unnecessary and only allowing the parties to fill up the lacuna in their evidence. Respondent-1 has rightly set aside the order of the Appellate Court. Finding of facts recorded by respondents-1 and 2 do not suffer from any illegality."
Since no proper opportunity had been afforded to the contesting respondents to adduce the evidence, therefore, the matter has rightly been remanded by the Deputy Director of Consolidation by the impugned order.
I do not find any illegality and infirmity in the impugned order.
The writ petition is accordingly, dismissed. However, considering the facts and circumstances of this case as the matter is the old one, the Consolidation Officer, Gorakhpur is directed to decide the trial as expeditiously as possible preferably within a period of 9 months.
Order Date :- 23.8.2018 Sweety